171 Ill. 299 | Ill. | 1898
delivered the opinion of the court:
An application was made by the county collector of Cook county for a tax judgment against the lands of appellant on account of a delinquent third installment of a special assessment levied by the village of North Harvey.
One of the objections filed is, that the court confirming the assessment roll was without jurisdiction. On the hearing, judgment was rendered as prayed. This, it is claimed, was error, for the reason that the evidence reveals the fact that the persons who acted as commissioners and made the assessment are not the persons who were appointed by the court for that purpose. The judgment of confirmation was introduced, and it contains a recital that the commissioners heretofore appointed by the court to make the assessment have in all things complied with the law as to the posting, publishing and mailing of notice. This is a finding by the court as to the existence of the facts which gives it jurisdiction over the property specially assessed in that proceeding. Such a finding, under our decisions, is conclusive in a collateral proceeding.
It is claimed, however, tliat this recital is overcome by the production of a publisher’s certificate and two affidavits, and the exhibits thereto attached. The order of the county court shows that D. J. McMahon, Charles E. Smith and William Lee were appointed as such commissioners. The notices attached to said affidavits and certificate purport to have been given by H. Moynihan, Charles E. Smith and William Lee. The trial court admitted the said papers in evidence, but on the hearing evidently considered them insufficient to overcome the recital, its finding being in favor of the people. This conclusion was correct. The affidavits and certificate were, at most, merely evidence, or, as the statute says, “prima facie evidence,” on which the court may or may not have acted in arriving at its finding in the special assessment proceeding as to its jurisdiction. These papers cannot be permitted, on a collateral attack, to contradict and overthrow the solemn judgment of the court. Casey v. People, 165 Ill. 49; Hertig v. People, 159 id. 237.
The two cases of McChesney v. People, 145 Ill. 614, and 148 id. 221, are cited as maintaining a contrary rule. This is a misapprehension. It is true that in those cases the lack of jurisdiction was treated as shown by the affidavit and certificate; but as we have heretofore said, speaking of these cases: “No point was made or considered that the judgment of confirmation could not be thus attacked in a collateral proceeding, but in the case at bar it is made and must be sustained.” (Dickey v. People, 160 Ill. 633.) A failure to give notice as required by the statute is fatal to the jurisdiction to confirm the roll. An assessment roll made by persons other than those appointed by the court for that purpose is likewise fatal to the jurisdiction; but this want of jurisdiction must be made to appear on the face of the record itself, otherwise it can not be taken advantage of in a collateral proceeding.
Counsel have also discussed the question of whether a judgment in favor of the objector, on an application for judgment for a prior delinquent installment of the same assessment, is res judicata here. We held in the recent case of Markley v. People, (ante, p. 260,) that the holding of the county court that the ordinance under which the assessment was levied was void on an application for judgment for a former delinquent installment operated as an estoppel in the subsequent case. But there are two obstacles in the way of applying that rule here. First, the evidence does not show the judgment which it is claimed constitutes the former adjudication. A minute on the clerk’s docket is not the judgment, and that is all the record shows. Second, the evidence does not show that the controlling question or fact is the same in both cases. “The burden of establishing an estoppel is upon him who invokes it. * * * In order that the judgment should operate as an estoppel it must either appear upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. * * * If there be any uncertainty on this head in the record,—as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated and upon which the judgment was rendered,—the whole subject matter of the action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.” Sawyer v. Nelson, 160 Ill. 629 (at p. 631.)
The judgment must be affirmed.
Judgment affirmed.
