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People v. Boening

FEBRUARY 11, 1966.




Appeal from the Circuit Court, Cook County; the Hon. WILLIAM V. BROTHERS, Judge, presiding. Reversed and remanded.


This appeal was taken from an order in the Circuit Court of Cook County directing the issuance of a tax deed. The appeal was taken to the Supreme Court and by that court transferred here. Audrey Jo Scully, the petitioner, purchased the property in question in the regular course of a tax foreclosure suit on August 16, 1960. On August 17, 1962, the petitioner presented to the County Clerk of Cook County for his approval a decree directing issuance of a tax foreclosure deed to her. A rule of the Circuit Court at that time required that the approval of the County Clerk and the State's Attorney be placed in writing upon the decree before the court would act upon a petition for a tax deed order. The County Clerk informed the petitioner that the Satterfield Corporation had made a redemption from the tax foreclosure sale on August 2, 1962, and that the Clerk would not approve the decree. Petitioner's right to a tax deed, under the statute, would have matured on August 16, 1962.

On February 8, 1963, the petitioner served notice upon the Satterfield Corporation and Harriet Friedman, together with a copy of her petition. The notice stated that the petition would be presented to the court on February 14, 1963. On February 13, 1963, a second purported redemption was made with the County Clerk in the name of Harriet Friedman, "C/o The Satterfield Corporation." On February 14, 1963, the petitioner was given leave to file her petition, and the respondents were ordered to file an answer within 30 days. This petition alleged facts showing that petitioner had received a certificate of purchase at a tax foreclosure sale on August 16, 1960; that thereafter she paid all required taxes; that the records of the County Clerk of Cook County showed that the Satterfield Corporation had on August 2, 1962, deposited redemption money in order to redeem the subject parcel from the 1960 tax sale. The petition alleged that Satterfield Corporation had no interest in the subject premises on August 2, 1962; that from 1928 to July 17, 1962, the record title holder was one Dorothy Listing, who purportedly conveyed her interest in the subject real estate by quitclaim deed to one Harriet Friedman; that this deed was recorded; and that petitioner had given all notices entitling her to a tax deed. Petitioner prayed that the purported redemption by Satterfield Corporation be expunged from the records and that the court order the County Clerk to issue a tax deed conveying the subject premises to her.

On March 11, 1963, the respondents filed a sworn answer admitting most of the allegations of petitioner's pleading, and expressly agreeing to petitioner's statement that Satterfield Corporation was not the owner of the subject realty on August 2, 1962, and had no right to redeem from the foreclosure sale. The answer expressly denied that the petitioner had given "all notices entitling her to a tax deed." Further answering, Harriet Friedman stated and alleged that the quitclaim deed given by Dorothy Listing, a spinster, to Harriet Friedman had been acknowledged by Albert Hassell, a notary public of Cook County; that the deed and the grantor's certificate of acknowledgment were recorded in the office of the recorder of deeds on July 17, 1962; that the redemption deposit of August 2, 1962, had been made by Satterfield as agent for Harriet Friedman; and that Harriet Friedman, having been advised that redemption could only be made by the owner of record, deposited redemption money in the office of the County Clerk and received a certificate of redemption dated February 14, 1963. The respondents, Friedman and Satterfield, joined in the prayer of the petitioner which asked that Satterfield's defective redemption be expunged from the records of the County Clerk and that the County Clerk be ordered to refund to Satterfield the sum it had deposited on August 2, 1962. The answer prayed that the petition, insofar as it prayed for the issuance of a tax deed to the petitioner, should be dismissed.

On May 28, 1963, the court entered an order allowing the petitioner to file an amendment to her previously filed petition. No notice appears in the record to have been given to the respondents. In that amendment the petitioner alleged, on information and belief, that in 1962 Harriet Friedman was nonexistent; that after the service of the petition to set aside the redemption upon the Satterfield Corporation, Harriet Friedman on February 13 attempted a second redemption from the said sale, and on March 11, 1963, filed an answer to petitioner's petition as above noted; that the Satterfield Corporation had no right to redeem under its charter; that the invalid redemption by the Satterfield Corporation prevented petitioner from obtaining a decree ordering the County Clerk to issue her a tax deed; that since that time petitioner had been attempting to discover whether or not the deed from Listing to Friedman was a valid conveyance, and whether or not Listing had ever existed or was existing in July 1962. The amendment further alleged that Albert Hassell, the notary public on the quitclaim deed from Listing to Friedman, had refused to state whether or not Listing was a fictitious person; and that David Shapiro had stated that he gave the consideration for the quitclaim deed to Hassell in a check payable to Hassell. It was further stated, on information and belief, that Hassell was interested in the purchase price money or in the ownership of the lot, which interest disqualified him to take and certify the acknowledgment to the deed, and that hence, the quitclaim deed was void. On information and belief the petitioner stated that Richard Haley and Minnie Haley, or their heirs, were the only persons entitled to redeem; and the petitioner prayed that the purported redemption in the name of Harriet Friedman be expunged from the sale and judgment records of the County Clerk, and that he refund to Friedman the sum deposited by her.

On June 10, 1963, the respondents substituted attorneys and asked to withdraw the answer filed by them on March 11, 1963. No order was entered by the court either denying or permitting the withdrawal of the answer, nor is any point made on the question in this court. On June 14, 1963, the respondents filed a petition setting out that they had, in accordance with Rule 19 of the Supreme Court, attempted to take a discovery deposition of the petitioner, and that at the time of taking the deposition counsel for the respondents propounded to the petitioner questions which petitioner's counsel instructed her not to answer. The respondents prayed that the court enter an order upon the petitioner to answer the propounded questions, and that the court extend the time for the respondents to plead to the amended petition of the petitioner. A copy of the questions asked on deposition was attached to the petition.

On July 17, 1963, the respondents filed interrogatories upon the petitioner; these take up eight pages of the abstract. On August 12, 1963, certain answers were filed to the interrogatories; one was as follows:

5.A. To whom have you given notice as required by Section 263 of the Revenue Act of 1939?

Answer: Notice was given James Keller, Edwin Weber and Lolita Weber; each personally. Notice was given Dorothy Listing, Dorothy T. Listing, unknown owners or parties interested in said real estate; by publication in the Chicago Daily Law Bulletin on April 16, 23 and 30, 1962.

In an answer (the filing of which is controverted) to the amended petition the respondents alleged that because of the failure of the petitioner to answer discovery questions the respondents could not answer certain of the allegations, and they admitted that they originally filed an answer stating that the Satterfield Corporation did not have the legal right to redeem; they here affirmatively stated "that at the time of making such redemption Satterfield Corporation was the duly authorized agent of Harriet Friedman and that such redemption was in fact made in her behalf and was [a] valid and legal redemption in all respects when made."

The respondents further contended that the allegation with reference to Albert Hassell's interest in the transaction was not answered because of the petitioner's failure to answer questions propounded to her in the deposition and in interrogatories, and respondents prayed that the relief sought in both the petition and the amended petition be denied. The respondents claimed that they filed with the answer a cross-petition in which it was stated that the petitioner was acting as the nominee for one Edwin Weber, who allegedly was in fact the real party in interest, and they prayed for attorney's fees and that summons be issued against Weber, and that he be made a party to the proceedings.

On July 18, 1963, the respondents moved that the court order summons to issue against Edwin Weber. The motion was continued to September 9, 1963. On July 22, 1963, the petitioner moved to strike the cross-petition of Satterfield Corporation and Harriet Friedman. (As we have pointed out, nothing appears in the record to indicate that either the answer or the cross-petition was actually filed.) On July 31, 1963, the petitioner was given leave to file objections to the interrogatories. The objections were numerous and a hearing was set for September 17, 1963. On September 9, 1963, the court entered an order striking all the interrogatories but two, and denying the motion to file a cross-petition. In that order it was said, among other things:

(1) That respondents are not entitled to pre-trial discovery or to ask interrogatories with respect to [the] ...

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