City of East St. Louis v. Underwood , 105 Ill. 308 ( 1883 )

Mr. Justice Scholfield

delivered the opinion of the Court:

This is an appeal from the judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county, whereby a peremptory mandamus was awarded in favor of appellee, and against appellant, for the payment of a certain judgment.

No objection was taken or exception saved to any ruling of the circuit court, and the judgment of the Appellate Court is conclusive as to all questions of controverted fact. There can, therefore, only remain to be inquired into, the question whether, under any evidence that would have been admissible under the pleadings, the judgment can be sustained. Bridge Co. v. Comrs. of Highways, 101 Ill. 518; Fitch v. Johnson, 104 id. 112; Edgerton v. Weaver, ante, p. 43.

The objection that there is a variance between the prayer of the petition and the judgment, is untenable. The alternative prayer is, that a levy be made, etc., if the money on hand shall be insufficient, etc. A subsequent levy, equal in amount to the limitation in the city charter of one per centum, being made, it is clearly within the spirit of the alternative prayer to treat, as the judgment does, three-tenths of that amount as levied for the benefit of the class to which the debt of the relatrix belonged, and direct the payment of her judgment out of the sum thus levied, when it shall be collected. Besides, in our opinion, an objection of this character should have been urged first in the circuit court, where, under our statute, it would have been admissible to have allowed an amendment of the petition, so as to have made it conform to the judgment. This could have worked no surprise and produced no injury, for the objection, at most, is purely technical, and does not go the merits of the controversy.

We held in Weber v. Traubel et al. 95 Ill. 427, that appellant, under the first section of article 3 of its charter, was limited, in levying taxes for all city purposes, to one per. centum per annum upon the assessed value of the property - within the city, and that the three mills to be levied and collected for the payment of the indebtedness, as provided by section 22 of article 7 of its charter, is included in that limitation ; and so 'it must follow, where there is a levy of one per centum, and there is also indebtedness of the class contemplated in section 22, article 7, it is strictly in conformity with these sections to direct that three-tenths of that amount be devoted to that indebtedness, if so much shall be required. The creditors are lawfully entitled to have this levy annually made, and so long as it shall be necessary to make it, there is no authority to devote more than seven-tenths of the levy of one per centum for any fiscal year to current expenses. Such expenses must be kept within that amount, or the creditors thereby made be compelled to take their chances of being paid in the future.

An objection was urged that the indebtedness of the relatrix was merged in her judgment, and that, although thé original indebtedness is of the description to be provided for by section 22, supra, being merged in the judgment, it stands now just as any other indebtedness, This is untenable/" While it is true that the debt, technically, is merged in the judgment, this does not affect its classification,—and it is •that to which section 22 has reference. The origin of the debt fixes its classification, and this, most obviously, remains the -same, however numerous the mutations the form of the debt may undergo. As held in People ex rel. v. Clark County, 50 Ill. 213, before the relatrix could have a mandamus to compel the payment of her indebtedness, it was essential that she should obtain a judgment upon it at law. It would be as iniquitous as absurd, that she should be compelled to lose all security and all remedy for the collection of her debt in consequence of attempting to enforce its collection in the only mode provided by law.

The finding of facts by the circuit court, although, in our opinion, perfectly consistent with the judgment rendered, not being required by law, presents no question demanding our consideration. Nor is it necessary to discuss any defence specially set up in the answer, since no question of law was raised thereupon in the circuit court, and where the answer contradicts the allegations of the petition we are to assume the evidence sustains the latter.

No error has been pointed out, and we have been unable to discover any, requiring a reversal of the judgment below. It is, therefore, affirmed.

Judgment affirmed.