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Department of Revenue v. Joch

OPINION FILED NOVEMBER 27, 1951.

THE DEPARTMENT OF REVENUE, APPELLANT,

v.

JOHN JOCH, APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. WIN G. KNOCH, Judge, presiding.

MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:

This is an appeal by the Department of Revenue of the State of Illinois from a judgment of the circuit court of Du Page County which vacated and set aside a prior judgment of that court entered on October 22, 1947, in favor of the Department and against the defendant, Joch, in the amount of $7220.64. The revenue being involved, the appeal has been perfected directly to this court.

A review of the record in this case indicates that the Department of Revenue filed suit in the circuit court of Du Page County against the defendant, Joch, on November 19, 1946. Summons was issued and served upon the defendant personally on November 20, 1946. Thereafter, on December 26, 1946, the defendant, through his attorney, entered an appearance in said cause. The appearance filed was as follows, "I hereby enter the appearance of John Joch, d/b/a Joch's Grocery, as defendant in the above entitled cause, and my appearance as his attorney therein." No answer was filed by the defendant or any other pleading in his behalf.

The complaint under oath alleged that the defendant was engaged in the business of selling tangible personal property at retail in Du Page County, that he incurred liability for retailers' occupation tax at the rate set forth in the statute and for the period from July, 1938, to October, 1941, and that he was notified by the Department that it proposed to assess him $9601.68 for taxes and penalties on account of deficiencies and delinquencies. It was further alleged that a hearing was held pursuant to notice and in accordance with the statutes and that as a result of this hearing an assessment of deficiency was made against him in the amount of $8370.64 and that the defendant had paid the sum of $1150 and that there was due and owing to the State of Illinois the sum of $7220.64 for which a judgment was asked. On October 22, 1947, the court entered a judgment against the defendant in favor of the plaintiff in the amount of $7220.64. This judgment recited that the defendant had been served personally with summons and had failed to plead although he had filed his appearance. The judgment further recited that, no answer having been filed and the defendant having made default for want of an answer, upon motion of the plaintiff a default was entered against him of record. The court then further recited that the plaintiff was entitled to recover against the defendant the amount claimed in the complaint, and judgment was entered for that amount. Nothing further occurred after the rendering of this judgment until October 18, 1949. On this date the defendant filed his "Motion to vacate and set aside judgment, strike plaintiff's complaint and dismiss suit." This motion recited that it was filed pursuant to section 72 of the Civil Practice Act and the motion set forth, among several reasons, the following reason why the judgment of October 22, 1947, should be set aside and vacated:

"5. That the cause of action stated in plaintiff's complaint which arose and accrued to the plaintiff under Section 5 of the Illinois Retailers' Occupation Tax Act aforesaid, accrued more than two (2) years and the time allowed for a review thereof, before the commencement of this action and said action was, when commenced, wholly barred and extinguished by said Section 5 of the Illinois Retailers' Occupation Tax Act aforesaid before the commencement of this action." The other reasons need not be discussed because they are not urged as forming the basis of this appeal.

On March 14, 1950, the Department of Revenue filed a motion to strike and dismiss the defendant's motion. It contended as follows:

1. That the defendant's motion did not state a cause of action or right to relief against the plaintiff either at law, equity or otherwise.

2. The grounds upon which defendant relied in his motion and the matters alleged therein did not entitle the defendant to any relief whatsoever.

3. The motion of the defendant was in all other respects insufficient, insubstantial and inadequate.

The case was then taken under advisement and written briefs were submitted. Subsequently, on August 11, 1950, the court entered the judgment appealed from. In that judgment the court found that the cause of action as stated in the plaintiff's complaint accrued on March 9, 1943, and that under section 5 of the Retailers' Occupation Tax Act the plaintiff had two years thereafter or until March 10, 1945, within which to file its suit and that, the plaintiff having failed to file its suit within the time provided in pursuance of section 5 of the act, the cause of action was wholly barred and extinguished, and that it was without jurisdiction of the subject matter of the suit. The court then proceeded to order that the judgment of October 22, 1947, be vacated, set aside and held for naught. It further ordered that the complaint of the plaintiff be stricken, that the suit be dismissed and that judgment be rendered in favor of the defendant against the Department of Revenue. The Department of Revenue has taken this appeal from that judgment.

The Department contends that this judgment of the court should be reversed for the following reasons:

1. The failure of the complaint to state a cause of action is not ground for a collateral attack upon a judgment nearly two years after it was rendered.

2. The defendant's entry of appearance without the filing of any answer or other pleading amounted to a consent to the suit and to ...


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