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(276 Ill. 403)

| 180) by that name, and O. H. Rohrer, townSHRIVER V. DAY, County Treasurer, et al. ship high school treasurer, defendants, and (No. 10988.)

prayed for an injunction against the issue or (Supreme Court of Illinois. Dec. 21, 1916. payment of any warrants for the purchase Rehearing Denied Feb. 8, 1917.)

of a schoolhouse site. A preliminary injunc

tion was issued and nothing further was 1. SCHOOLS AND SCHOOL DISTRICTS 107TAXATION ADEQUATE LEGAL REMEDY

done until the final hearing, wit was on Quo WARRANTO.

demurrer at the June term, 1916, when the A bill will not lie to enjoin the directors injunction was made perpetual. No come of a school district from enforcing an ment for the purchase of a schoolhouse site, plaint is made in regard to these proceedings. șince an adequate legal remedy by quo warranto On March 27, 1916, the complainant obtainis provided, and such remedy is exclusive. ed leave to file, and did file, what is called

[Ed. Note.--For other cases, see Schools and a supplemental bill, alleging that on April School Districts, Cent. Dig. $8253–256; Dec. 6, 1915, four days after the filing of the origDig. 107.)

inal bill, an election was held in the district 2. SCHOOLS AND SCHOOL DISTRICTS Om 24(2)JURISDICTION OF EQUITY DISSOLUTION

pursuant to a petition filed on February 11, PROCEEDINGS.

1915, with the school treasurer, on the propAn allegation that a school district has been osition to discontinue the high school district, dissolved by popular vote will not give equity and the majority of the votes cast were in jurisdiction to try the question of its existence, favor of discontinuing the district, but, never

[Ed. Note. For other cases, see Schools and Scbool Districts, Cent. Dig. '$ 48; Dec. Dig. theless, the board of directors afterward On 24(2).]

levied a tax in the district, which was ex3. SCHOOLS AND SCHOOL DISTRICTS Om 24(2)

—tended by the county clerk and which the ORGANIZATION-COLLATERAL ATTACK. township collector was proceeding to collect;

Equity has no jurisdiction to enjoin the collection of a tax for the purchase of a school- that the board of directors has never acquirhouse site, where such action involves a col- ed any school property, had any school room, lateral attack upon the existence of the school conducted any school or done anything in the district.

way of education in Virden township ex[Ed. Note.-For other cases, see Schools and

cept hold conferences among its members School Districts, Cent. Dig. $ 48; Dec. Dig. Om 24(2).]

and levy taxes; that the high school district, 4. SCHOOLS AND SCHOOL DISTRICTS Om 107–by reason of the premises, has been fully disENJOINING ASSESSMENT-PARTIES.

solved and the act of the board of directors Equity will not grant a decree of injunc- in levying taxes was illegal. The county tion against directors of a school district re- collector was made a defendant to the sostraining them from enforcing an assessment for the purchase of a schoolhouse site, where called supplemental bill, and it prayed that such directors are not made parties, even if ju- each and all of the persons professing to act risdiction would otherwise be sufficient.

as members of the board of directors of Vir[Ed. Note. For other cases, see Schools and den Township high school district be enSchool Districts, Cent. Dig. 88 253–256; Dec. Dig. Om107.)

joined from so acting; that the high school

district be decreed to have been dissolved ; Appeal from Circuit Court, Macoupin Coun- that the further collection of taxes be enty; F. W. Burton, Judge.

joined; and that the court decree a distribuBill by William A. Shriver against Elmer tion of the money already collected, when E. Day, County Treasurer, and others, to paid over to the township treasurer, with restrain enforcement of an assessment for all other money in his hands, among the sev. the purchase of a schoolhouse site. From an eral school districts any of whose territory order granting the injunction, defendants was included within the township high school appeal. Reversed in part and remanded, district. This document came on to be heard with directions.

at the same time with the original bill on James H. Murphy, of Virden, and Victor demurrer, and the court, after granting the H. Hemphill, of Carlinville, for appellants. relief prayed for in the original bill, further Alexander H. Bell, of Carlinville, for appel- decreed that the Virden Township high lee.

school district be declared to be wholly dis

solved and set at naught in consequence of DUNN, J. The appellee, as a taxpayer in the special election on April 6, 1915, and Virden Township high school district, filed that the board of directors, and each member his bill in the circuit court of Macoupin coun- thereof, be enjoined from further action as ty on April 2, 1915, alleging the organiza- a high school district except as thereafter tion of the district in 1912, the levying of a directed, and that the county collector be tax in 1914 and its collection, the intention enjoined from collecting any tax levied after of the board of directors of the district to April 6, 1915; that the board of directors use the money so collect'd in the purchase and treasurer forthwith surrender all the asof a schoolhouse site, and reasons why such sets of the high school district to the dispurchase would be illegal. The bill made trict fund of the town of Virden in proporthe board of directors of Virden Township tion to the assessed valuation of the same, high schoo: district (being school district No. and that all funds in the treasury or there

after received be distributed by the board | made parties to the suit, and even if the dis. of directors and treasurer among the several trict was dissolved no decree enjoining the school districts as the same was contributed directors could be made in a suit in which by the property and property owners in the they were not parties. several school districts forming the high The decree on the original bill will be alschool district, but it was further ordered | firmed and the residue of the decree will be that the board of directors and treasurer reversed and the cause will be remanded to might pay the reasonable expenses or lia- the circuit court, with directions to sustain bilities incurred by the district prior to the the demurrer to the supplemental bill. election dissolving it and still unpaid. The Reversed in part and remanded, with ditreasurer and board of directors appealed. rections.

[1] The question argued in the briefs is whether or not there was any law before the

(276 Ill, 407) act of 1915 (Laws 1915, $ 8, p. 630) for the PEOPLE ex rel. MATTER, County Collector, dissolution of a high school district organ

v. CHICAGO TITLE & TRUST CO. ized under the act of 1911. The appellee

(No. 10969.) insists that section 92 of the General School (Supreme Court of Illinois. Dec. 21, 1916. Law (Hurd's Stat. 1916, p. 2359) applied,

Rehearing Denied Feb. 8, 1917.) while the appellants insist it did not. The 1. APPEAL AND ERROR Om 1207(1)-PROCEEDquestion is immaterial, for equity has no

INGS UPON REMAND-MANDATE_TAX SALE. jurisdiction of the subject-matter of the so

In proceedings to sell land for an install

ment of a special assessment for paving a vilcalled supplemental bill. It is not a sup- lage street, where, on review by writ of error, plemental bill, for it has no connection with the Supreme Court found that the purported the original bill, except, probably, the same judgment and order of sale were insufficient,

and amounted merely to an order for judgment, case number and file wrapper. The original and remanded the cause with directions to the bill recognizes the validity of the organiza- county court to enter a proper judgment, the tion of the high school district and makes county court, by reason of the tax sale having it defendant, as a corporation. The supple- date of the Supreme Court; all questions rela

taken place, was not powerless to obey the manmental bill does not question the validity of tive to the propriety to entry of proper judgthe organization. It alleges that the cor- ment having been determined on error. poration has been dissolved, but that the [Ed. Note. For other cases, see Appeal and board of directors, notwithstanding such dis- Error, Cent. Dig. $ 4696; Dec.'Dig. OS 1207(1).] solution, continues to exercise its corporate 2. APPEAL AND ERROR Cw1195(1)—-PRESEN

TATION OF BAB TO ENTBY OF PROPEB JUDGpowers, and asks that the board of directors,

MENT. and each member thereof, be enjoined from If the owner of land sold pursuant to judgdoing so. Equity cannot grant such relief. ment and order for installment of special assessThe existence of a corporation or the legality ment for paving village street desired to rely

on the sale as a bar to entry of proper judg. of its organization cannot be inquired into ment against the land, it should have presented by a bill in chancery. The law provides the question to the Supreme Court reviewing the an adeguate remedy in such case by quo judgment by writ of error; the record disclos. warranto, and such remedy is exclusive. ing the tax sale.

(Ed. Note. For other cases, see Appeal and Equity has no jurisdiction. Trumbo v. Peo- Error, Cent. Dig. 8 4661; Dec. 'Dig. Om 1195(1).] ple, 75 Ill. 561; Renwick v. Hall, 84 Ill. 162; Osborn v. People, 103 Ill. 224; Keigwin v. Appeal from Du Page County Court; S. Drainage Com'rs, 115 Ill. 347, 5 N. E. 575; L. Rathje, Judge. Evans v. Lewis, 121 III. 478, 13 N. E. 246; Proceedings by the People, on the relation Lees v. Drainage Com’rs, 125 III. 47, 16 N. of Newton E Matter, County Collector, E. 915; Bodman v. Drainage District, 132 against the Chicago Title & Trust Company. Ill. 439, 24 N. E. 630.

From a judgment and order of sale nunc [2-4] No objection is made to the legality pro tunc, defendant appeals. Judgment af. of the organization of the district, but it is firmed. claimed that the election of April 6, 1915, George A. Mason, of Chicago (Robert Zadissolved the corporation. The board of di- leski, of Chicago, of counsel), for appellant. rectors has, however, continued to act as a Charles W. Hadley, State's Atty., of Wheacorporation since the election to the same ex- ton, and Aubrey B. Snow, of Chicago (John tent as before, and the claim is made that the R. O'Connor and Alben F. Bates, both of election had no effect upon the organization of Chicago, of counsel), for appellee. the district. The alleged dissolution of the corporation conferred no jurisdiction upon COOKE, J. At the June term, 1913, of the equity to try the question of its existence. Du Page county court a judgment and order Neither has equity jurisdiction to enjoin the of sale were entered against lot 3 in county collection of the tax, for this also involves clerk's subdivision of part of A. C. Ducat's a collateral attack upon the existence of the estate for the sixth installment of a special corporation. It may also be taken note of assessment levied for the paving of a street that the individuals composing the board of in the village of Downers Grove. The Chicago directors of the supposed district are not | Title & Trust Company, trustee of the estate

For other cases we same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

A date.

of Arthur Ducat, deceased, sued out a writ, that fact as a bar to the entry of a proper of error from this court to review that judg- judgment the question should have been prement and order of sale, and the judgment sented in that case. was reversed for the reason that it was in The judgment of the county court is atsufficient and the cause was remanded to the firmed. county court, with directions to enter a prop Judgment affirmed. er judgment. People v. Chicago Title & Trust Co., 266 Ill, 224, 107 N. E. 198. The mandate

(276 Ill. 409) of this court was duly filed in the office of the

MULLARKY v. TRAUTVETTER et al. clerk of the county court of Du Page county,

(No. 10947.) and upon proper notice the cause was redocketed. The Chicago Title & Trust Com- (Supreme Court of Illinois. Dec. 21, 1916. pany, as trustee, thereupon filed additional ob Rehearing Denied Feb. 8, 1917.) jections to the entry of any judgment or or- 1. RECORDS Ow9(8)-REGISTRATION OF TITLE der of sale against said real estate, for the

-APPLICATION. reason that the property had been sold for setting out defendants' claim as being based on

An application to register title to real estate, said installment on June 26, 1913, the lien of a contract with the former owner, was not de the assessment upon the property was there- fective for failure to allege that such owner bad by discharged, and the county court was vendor, to furnish to defendants as vendees,

complied with the contract requiring her, as therefore without authority to enter judg- within a reasonable time, a complete abstract of ment and order of sale against the property title, or a merchantable copy brought down to for that installment of said assessment. hearing was had, at which the Chicago Title

[Ed. Note.-For other cases, see Records, Dec.

Dig. Om9(8).] & Trust Company offered in evidence the tax

2. RECORDS Om9(8)–REGISTRATION OF TITLE redemption record of Du Page county for the

-APPLICATION. year 1913, showing the sale of said lot 3 to

An application to register title to real esJacob Glos on June 26, 1913, for the full tate need not aver the invalidity of the adverse amount of the assessment, interest, and costs. claim of title, but need only set forth the names

and addresses of the adverse claimants and the The objections were overruled, and upon mo- nature of their claims. tion of the county collector the court entered (Ed. Note.-For other cases, see Records, Dec. judgment and order of sale nunc pro tunc as Dig. 9(8).] of June 11, 1913, the date of the entry of 3. RECORDS Omw 9(9)–REGISTRATION OF TITLE the erroneous judgment. From the entry of

-BURDEN OF PROOF. this judgment this appeal has been perfected. initial registration of title to establish the va

While the burden is on the applicant for the [1, 2] The contention of appellant is that lidity of his title, he need not establish the invathe judgment should be reversed because the lidity of adverse claims of title. tax sale satisfied the lien of the assessment

(Ed. Note.-For other cases, see Records, Dec.

Dig. Om9(9).) and no further judgment could be entered, and because there was nothing in the record 4. RECORDS Ow9(9)—REGISTRATION OF TITLE

-BURDEN OF PROOF. to warrant the entry of a nunc pro tunc The applicant for initial registration of title judgment. On the former review by writ of may be required to do equity to adverse claimerror we found that the purported judgment ants before his title will be registered, but the

burden of establishing the existence of such egentered at the June term, 1913, was insuffi- uity rests on the adverse claimants. cient and amounted merely to an order for a

[Ed. Note.-For other cases, see Records, Dera judgment. The cause was remanded, with Dig. Om9(9).] directions to the county court to enter a proper judgment. The county court had no alter

Appeal from Circuit Court, Cook County ;

Frederick A. Smith, Judge. native except to follow the mandate of this court and enter judgment as of the date of William G. Trautvetter and others to register

Application by Hattie W. Mullarky against the entry of the purported judgment of June 11, 1913. It is not contended here that this title to certain real estate. From a decree judgment was not entered in proper form.

for applicant, defendants appeal. Affirmed. The only contention made is that by reason Edward J. Kelley, of Chicago, for appelof the tax sale on June 26, 1913, the coun-lants. Albert E. Beath, Daniel A. Roberts, ty court was powerless to obey the mandate and Harry L. Brin, all of Chicago, for apof this court and enter any judgment at all. pellee. This position is not tenable. All questions relative to the propriety of the entry of a DUNN, J. On the application of Hattie proper judgment were determined in the case W. Mullarky the circuit court of Cook counof People v. Chicago Title & Trust Co., su- ty registered her title to certain real estate, pra, and appellant could not object to the ac- and William George Trautvetter and Anna tion of the county court in obeying the man- Louise Trautvetter, who were defendants, date of this court. Counsel for appellant have appealed. Their objections to the de concede that the record in People v. Chicago cree are that neither the allegations of the Title & Trust Co., supra, disclosed the tax bill nor the proofs in the record are sufficient sale to Glos, and if they desired to rely upon to sustain it.

The act for the registration of title pre-, ceeding is statutory. The power of the court scribes both the form and substance of the of chancery to remove a cloud from the title application, and requires it to state whether is called into operation, not in the usual any other person than the claimant has any way by the filing of a bill, but by an applicaestate or claims any interest in the land, and, tion the form and contents of which are preif any, to set forth the name and post office scribed by statute, as well as the decree address of every such person, and the nature which may be rendered upon it. When of his estate or claim. In attempted compli- pleading according to a form prescribed by ance with this requirement, the application a statute, it is not necessary, in order to obas finally amended stated the names and ad- tain relief authorized by the act, to state dress of the appellants, and set forth the na more than the act requires. It was unnecesture of their claim as some interest growing sary in the application to aver the invalidout of a contract of sale of said real estate ity of the adverse claim of title. All that made by Julian Van de Berge and the appel was required was to set forth the names and lants, giving a copy of the contract, showing addresses of the adverse claimants and the when and where it was recorded, and aver- nature of their claim. Gage v. Consumers' ring that the contract was never carried out Electric Light Co., 194 Ill. 30, 64 N. E. 653; by reason of a breach of the same on the part Gage v. Caraher, 125 Ill. 447, 17 N. E. 777. of the appellants; that Julian Van de Berge [3, 4] The applicant introduced no evidence was at all times, to the date of its expira in regard to the contract and the appellants tion, ready and able to perform his part of introduced none in regard to the performsuch contract, but the appellants defaulted ance of it by either party. It was admitted and refused to carry out their part. The that Louisa Van de Berge had the title on contract set out was an agreement for the February 11, 1914, and it was shown that sale of the premises by Louisa Van de Berge she, together with her husband, conveyed it and Julian Van de Berge, her husband, to to the appellee on April 17, 1914, who then the appellants, for $4,500, dated February had knowledge of the agreement; but there 11, 1914, and filed for record April 18, 1914. is nothing in the record to show whether or It acknowledged the receipt of $200 earnest not either of the parties had complied or had money, to be forfeited upon failure of per- failed to comply with the agreement. The formance by the appellants, and declared answer denies that Van de Berge was ready, time to be of the essence of the contract. willing, and able to perform his part of the Though the agreement purported in its com- contract, and denies any default on the part mencement to be between Louisa Van de of the appellants. The burden of proof is on Berge and Julian Van de Berge, her husband, the applicant for the initial registration of and Anna Louise Trautvetter and William title to establish the validity of his title. It G. Trautvetter, it was signed only by Julian is not incumbent on him, however, to estabVan de Berge and W. G. Trautvetter.

lish the invalidity of an adverse claim of tiThe appellants insist that the application tle. Glos v. Hoban, 212 Ill. 222, 72 N. E. 1; is insufficient, because the allegations of Glos v. Talcott, 213 Ill. 81, 72 N. E. 707; readiness to perform on the part of Van de McMahon 'v. Rowley, 238 Ill. 31, 87 N. E. Berge and of default on the part of Traut. 66; Waugh v. Glos, 246 Ill. 604, 92 N. E. vetter are only conclusions of the pleader, 974, 138 Am. St. Rep. 259. It is the intenand there is no allegation of performance, in tion of the act that all parties interested fact, by Van de Berge of those things which shall be before the court, and that each shall he was required to perform. The contract have the burden of establishing his title, inrequired the vendor to furnish within a rea- terest, claim, or lien. Where the proof fails sonable time a complete abstract of title, or the claim fails. Proof of the agreement, a merchantable copy brought down to date, alone, did not show any interest in the apand there is no allegation that this was done. pellants. The burden was on them to aver

[1, 2] The appellants argue that a complain and prove facts showing their interest, if ant seeking the cancellation of an agreement any, in the land. The form of the issue for the sale of real estate must show, by spe- made no difference. Whether the appellants cific allegations of acts, that he did all that averred performance, or the applicant nonwas required of him by the contract before performance, the burden of proof still rethe other party could be in default for not mained upon the appellants to establish complying with the agreement. This is un- their claim. While the applicant for initial doubtedly true of a bill to set aside an agree- registration of title may be required to do ment or remove a cloud from title, and the al- equity to adverse claimants before his title legations in the application would be insuffi- will be registered, the burden of establishing cient in a bill in chancery to remove the the existence of such equity rests upon the agreement as a cloud on the title. This ap- adverse claimant. The evidence showed no plication is not, however, such a bill. The right of the appellants, legal or equitable, in application is required to be made to a court the real estate or against the applicant. having chancery jurisdiction, but the pro Decree affirmed.

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(276 Ill. 382)

Champaign county, and seeks a rerersal of PEOPLE V. ASHBROOK. (No. 10894.) the judgment for error of the court in over(Supreme Court of Illinois. Dec. 21, 1916. ruling his motion in arrest of judgment on Rehearing Denied Feb. 7, 1917.)

the ground of the insufficiency of the indict1. PERJURY



The indictment consisted of two counts. The purpose of describing in an indictment The objections made to it are that neither the proceeding in which the perjury was committed is to show that it was a judicial pro- count describes the character of the offense ceeding of which the court had jurisdiction, and charged in the proceedings in which the althat the false testimony was material; therefore leged false testimony was given or the naan indictment, alleging charged with the illegal sale of intoxicants in ture of such proceedings; that there is no the town of Champaign, in Champaign county, averment that the alleged false testimony which proceeding was heard in the circuit court, was material to the point in issue in those the court having lawful jurisdiction to try the proceedings, and do showing on the face of cause of material matter

whether defendant had sold in the indictment that the alleged false testitoxicants, is sufficient to show that the circuit mony was material to the point in issue; court had jurisdiction, the circuit court having that there is no averment that the false jurisdiction of all misdemeanors, and the unlawful sale of intoxicants being a statutory mis- statements were made feloniously, or that demeanor.

the defendant knew they were false; that [Ed. Note.- For other cases, see Perjury, Cent. the second count states that the former proDig. 88 71, 76–79; Dec. Dig. 22.)

ceeding was tried before the court, but does 2. PERJURY 19(2) OFFENSES WHAT | not state that a jury was waived, or whethCONSTITUTE.

er the charge was a felony or a misde As the circuit court had jurisdiction, and a conviction of the misdemeanor charged, though a jury was not waived as provided by statute, [1, 2] The second count of the indictment would be only erroneous and not void, false alleges that: swearing, regardless of the waiver of a jury, constituted perjury, and the indictment was not the 8th day of February, in the year of our

"Charles Ashbrook, late of said county, on insufficient because failing to allege whether a Lord 1916, at and within the said county of jury was waived.

Champaign and state of Illinois aforesaid, being [Ed. Note. For other cases, see Perjury, Cent. the defendant in a certain proceeding entitled Dig. 88 66, 71; Dec. Dig. 19(2).]

the ‘People of the State of Illinois against 3. PERJURY 25(5) INDICTMENT MATE- Charles Ashbrook, which was a proceeding RIALITY OF TESTIMONY.

charging the defendant, Charles Ashbrook, with An indictment for perjury may either allege the unlawful and illegal sale of intoxicating that the false testimony was material, or set liquor at and within the limits of the town of forth the facts showing its materiality, and so Champaign, in Champaign county, Ill., which an indictment, charging that defendant com- said proceeding was pending and was heard in mitted the crime of perjury by falsely testify the circuit court of Champaign county, 11., on ing that he had not illegally sold intoxicants in the 8th day of February, in the year of our Lord a prosecution against him for such illegal sale, 1916, the same being one of the regular judicial is sufficient, though merely alleging that the days of the circuit court of Champaign county, testimony was material.

Ill., said court having lawful authority to try [Ed. Note.-For other cases, see Perjury, said cause and having jurisdiction of the parCent. Dig. $ 85; Dec. Dig. 25(5).]

ties to said cause, and upon the hearing of said

cause, wherein the people of the state of Illi4. PERJURY On 26(3) – INDICTMENT SUFFI- nois was plaintiff and Charles Ashbrook was deCIENCY.

fendant, it became and was a material matter An indictment for perjury which charged in issue in said cause as to whether or not the that accused willfully, corruptly, and falsely said Charles Ashbrook, said defendant as aforeswore is sufficient, though not alleging that the said, had sold any beer, wine, or whisky or any false testimony was feloniously, given; perjury intoxicating liquor at and within the limits of not being a felony at common law.

the town of Champaign, in Champaign county, [Ed. Note. For other cases, see Perjury, Cent. Il., at any time within 18 months prior to the Dig. § 92; Dec. Dig. Om 26(3).)

27th day of January, in the year of our Lord 5. PERJURY 1-OFFENSES-FELONY.

1916," etc. At common law, perjury was not a felony.

The purpose of describing in the indict[Ed. Note.- For other cases, see Perjury, Cent. ment the proceeding in which the perjury Dig. 1; Dec. Dig. Oml.)

was committed is to show that it was a Error to Circuit Court, Champaign Coun- judicial proceeding of which the court bad ty; Franklin H. Boggs, Judge. Charles Ashbrook was convicted of per- was material. A general description of the

jurisdiction, and that the false testimony jury, and he brings error. Affirmed.

proceeding is sufficient, and it need not be F. M. Green and Green & Palmer, all of set out in detail. 'The indictment shows that Urbana, and Charles F. Mansfield, of Mon- the defendant was charged in that proceedticello, for plaintiff in error. P. J. Lucey, ing with the illegal sale of intoxicating Atty. Gen., Louis A. Busch, State's Atty., liquors in the town of Champaign, and it of Champaign, and George P. Ramsey, of was not necessary to set out the charge in Springfield, for the People.

that case with any greater particularity.

There are various misdemeanors created by DUNN, J. Charles Ashbrook was con- the statute to which this description may victed of perjury in the circuit court of apply, but it is not necessary to set out

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