Smythe v. People ex rel. Hanberg

Mr. Justice Hand delivered the opinion of the court: This was an application for judgment and order of sale against the lands of appellants in the county court of Cook county to satisfy the first installment of a special assessment levied for the construction of a system of sewers in the city of Chicago known as the West One Hundred and Thirteenth street system. The appellants appeared specially and filed objections on the ground that there was a fatal variance between the notice for judgment and order of sale and the delinquent list, and pointed but in their objections that the property was described in the notice as being located in “Herman & Krutz’s Roseland Park addition to Pullman,” whereas it was described in the delinquent list as being located in “Sherman & Krutz’s Roseland Park addition to Pullman.” Appellee introduced evidence showing that there was only one “Sherman & Krutz’s Roseland Park addition to Pullman” and no “Herman & Krutz’s Roseland Park addition to Pullman,” whereupon the court overruled the objections and rendered judgment and entered an order of sale against the lands of appellants, to reverse which judgment and order of sale the appellants have prosecuted this appeal. The statute (3 Starr & Curt. Stat.—2d ed.—chap. 120, par. 184, p. 3464,) provides that the county collector shall give notice for judgment and sale for delinquent taxes and special assessments by publication, which publication notice shall contain a list of the delinquent lands and lots upon which the taxes or special assessments remain due and unpaid, the names of the owners, if known, the total amount due thereon, and the year or years for which the same are due, and that he will apply to the county court for a judgment and order of sale against said lands and lots for said taxes and special assessments, with interest and costs. This section of the statute is mandatory and must be complied with strictly, otherwise the county court does not obtain jurisdiction to proceed. Cooley, in his work on Taxation, (1st ed.) on page 335 says, that whether the notice required is to be made by publication or by posting, “it must be complied with strictly. This is one of the most important of all the safeguards which has been deemed necessary to protect the interests of the parties taxed; and nothing can be a substitute for it. or excuse the failure to give it.” Blackwell, in his work on Tax Titles, (4th ed. p. 249,) says, that where “the statute declares what the contents of the advertisement shall be, each fact required by the statute must appear in the advertisement or it will be void; thus, the time and place of sale, a description of the lands to be sold, the amount of tax due, the name of the owner, * * * the year for which the tax was due, á recital of the purpose for which the tax was levied, and such other facts as the particular statute under which the notice is given may have rendered essential. Any omission in these respects, or variance between the contents of the notice and the facts of the case, will invalidate the proceedings.” This court (McChesney v. People, 178 Ill. 542; Gage v. People, 188 id. 92;) has held that a material variance between the notice and the delinquent list is fatal to a valid judgment and order of sale. The variance between the notice and delinquent list in the McChesney case was, that the name of the owner appeared in the notice as “Chesney” and in the delinquent list as “A. B. McChesney;” and the variance in the Gage case was, that the notice and delinquent list described differently the special assessment warrants, both as to date and the improvement for which the special assessment was to be levied. The delinquent list stands as a declaration and the notice as process, and they must agree. (Mann v. People, 102 Ill. 346.) The appellee sought to correct the defect by showing that there was no “Herman & Krutz’s Roseland Park addition to Pullman,” but that there was a “Sherman & Krutz’s Roseland Park addition to Pullman,” and reliance is placed upon a line of cases which hold that if a description is of such a character that a competent surveyor with reasonable certainty, either with or without extrinsic evidence, can identify the property, the tax levy will be sustained. (Law v. People, 80 Ill. 268; Otis v. People, 196 id. 542.) Those cases are not in point. There the sole question raised was whether the property had been sufficiently described in a delinquent list or in a tax deed, while here the question is, did the court have jurisdiction to render judgment against appellants’ property and to order it sold to satisfy a delinquent special assessment? We think it clear, under the authority of the McChesney and Gage cases, there was a material variance between the notice and the delinquent list, and that the county court erred in not sustaining the objections of appellants to the application for judgment and order of sale. The judgment of the county court will be reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion. Reversed and remanded.