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Larsen v. Lejcar

OCTOBER 1, 1971.

RUTH LARSEN, ET AL., PETITIONERS-APPELLANTS,

v.

BEN LEJCAR, ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DEMPSEY, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

This appeal is from an order dismissing the petition and amended petition of Ruth Larsen and Wallace Simmers seeking to vacate a judgment for a tax deed entered on October 15, 1965.

Ruth Larsen filed her petition on August 11, 1969, and on September 22, 1969, she and Simmers (hereinafter referred to as petitioner) obtained leave to file an amended petition naming, among others, Ben Lejcar, Helen and John Marlas as defendants.

The amended petition recited that the tax assessment was void because the property was exempt by reason of certain condemnation proceedings which remained in effect until May 8, 1964; that by reason thereof the assessment and forfeiture "was in error and resultingly fraudulent to fact"; that the affidavit in support of the deed was false and untrue in that Ruth Larsen occupied a house, barn and house trailer on said premises; that no proof was offered to support the obtaining of a tax deed; that there was a recorded, existing mortgage; that neither of the petitioners had "any knowledge of the processing by way of services as required by law in proceedings of this type"; and that the certificate of forfeiture was not properly filed and recorded under the Torrens System.

On November 24, 1969, the Marlases filed an answer alleging they were bona fide purchasers in 1967 and that by agreement with Ruth Larsen there was a judgment for possession on January 6, 1969. They also filed a motion to strike the petition. Lejcar filed his motion to strike and dismiss on March 10, 1970, alleging many insufficiencies in the petition, the primary one being that the petition was barred by law. On April 14, 1970, after hearing arguments and "admissions of counsel" (which do not appear in the record), the court sustained the motion of defendants to strike and dismiss the amended petition.

• 1 On appeal petitioners first contend that the magistrate did not have the power to hear and determine this type of case because Paragraph 628 of Chapter 37 of the Illinois Revised Statutes is unconstitutional. It reads:

"All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to colateral attack merely because rendered pursuant to improper assignment to a magistrate."

This issue was never raised in the trial court and therefore cannot be urged for the first time on appeal. Meyers v. Board of Education, 121 Ill. App.2d 186.

Petitioners next argue that since issues of fact had been presented by the pleadings the court erred in dismissing the amended petition. In their brief the petitioners state these issues as follows:

"1. Was there jurisdiction of the parties in accordance with the statute in the tax judgment proceeding?

2. Were the 1961 real estate tax assessments levied against exempt property?"

Relief from tax deed judgments is governed by Paragraph 266 of the Revenue Act (Ill. Rev. Stat., 1969, ch. 120, par. 747) which provides in part:

"Tax deeds issued pursuant to this Section are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. However, relief from such order may be had under Section 72 of the "Civil Practice Act", approved June 23, 1933, as heretofore or hereafter amended, in the same manner, upon the same grounds and to the same extent as may be had under that Section with respect to final orders, judgments and decrees in other proceedings and the court shall consider defenses relating to questions of the notices required by Section 263 and the proof presented in ...


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