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In Re Application of Cook County Treasurer

OPINION FILED DECEMBER 29, 1981.

IN RE APPLICATION OF COOK COUNTY TREASURER. — (THE PEOPLE EX REL. JULIA LARSON ET AL., PLAINTIFFS-APPELLEES,

v.

EDWARD J. ROSEWELL, TREASURER AND EX-OFFICIO COUNTY COLLECTOR OF COOK COUNTY, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH SCHNEIDER, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 9, 1982.

The County Collector of Cook County (Collector) appeals from the order of the circuit court entered pursuant to this court's opinion and mandate in People ex rel. Larson v. Rosewell (1980), 88 Ill. App.3d 272, 410 N.E.2d 404. In Larson we determined that the provision in section 235a of the Revenue Act (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 716a), commonly referred to as the Scavenger Act, for the publication by the county collector of "an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent" is mandatory. (88 Ill. App.3d 272, 276-79.) We therefore held that "the county collector could not lawfully omit from the advertisement certain properties because actions for the unpaid taxes were pending against the owners of those properties." (88 Ill. App.3d 272, 279.) Following issuance of the mandate, the trial court ordered the Collector to advertise and offer for sale tax delinquent properties owned by Larson and other plaintiffs. With respect to the sale of these properties, the court also ordered the Collector to permit redemption under the provisions of the Scavenger Act in effect in 1979. These redemption provisions were amended by the legislature in 1980.

The Collector appeals contending (1) that the trial court exceeded the scope of this court's opinion and mandate when it ordered the Collector to offer for sale properties owned by plaintiffs; and (2) that, assuming the order to offer for sale was not improper, the trial court erred in ordering the sale to be held under provisions of the Scavenger Act no longer in effect. For the reasons which follow, we affirm the trial court in part, reverse in part and remand with directions.

I

In Larson, we stated:

"We hold only that the county collector is mandated by the Scavenger Act to `publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent.' [Ill. Rev. Stat., 1978 Supp., ch. 120, par. 716a.] We express no opinion as to whether every parcel included in such advertisement must be the subject of a judgment for sale; * * *." (Emphasis added.) 88 Ill. App.3d 272, 278.

Seizing upon the italicized language, the Collector argues that in ordering him to offer for sale the tax delinquent properties owned by plaintiffs, "[t]he trial court clearly exceeded the mandate of this court * * *." *fn1 We cannot agree.

Section 235a of the Revenue Act (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 716a) provides in part:

"The County Collector shall make application for judgment for sale as provided in this Section and the Court shall give judgment for such general taxes, special taxes, special assessments, interest, penalties and costs as are included in the advertisement and appear to be due thereon after allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of this Act [ch. 120, par. 716], that such lands and lots be sold by the County Collector at public [sale] to the highest bidder for cash, notwithstanding the bid may be less than the full amount of taxes, special taxes, special assessments, interest, penalties and costs for which judgment has been entered."

Under section 235a, the trial court must afford interested parties an opportunity to object to the Collector's application for judgment and order of sale. Because of the possibility that an objector may have valid grounds for opposing the application, not every parcel included in the Collector's advertisement will necessarily be subject to a judgment and order of sale. But the mere possibility that judgment may be denied has no bearing on the Collector's statutory obligation to "`publish an advertisement giving notice of the intended application for judgment for sale * * *'" of tax delinquent properties and to make "`* * * application for judgment for sale * * *'" on such properties. 88 Ill. App.3d 272, 278.

• 1 The Collector's duties under the Scavenger Act are mandatory. (People ex rel. Larson v. Rosewell (1980), 88 Ill. App.3d 272, 276-77; In re Application of Rosewell (1981), 93 Ill. App.3d 1106, 1108, 418 N.E.2d 53; In re Application of County Collector (1981), 101 Ill. App.3d 498, 500.) Those duties include offering for sale properties on which judgment and order of sale has been entered. 101 Ill. App.3d 498, 500-01.

The Collector contends, however, that the trial court lacked in rem jurisdiction to order the Collector to offer for sale the properties owned by plaintiffs because there was no "application for judgment [and order of sale] of the subject property before the trial court" and because "the court entered the order without entering judgment against the property after giving all interested parties the opportunity to object." See Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 35, 344 N.E.2d 468.

In apparent contradiction to these assertions, the Collector also represents in his brief that the properties which are the subject of this appeal were submitted to the 1980 scavenger sale procedure. According to the Collector, "[a]n advertisement of notice of intent to apply for an order of judgment and sale was published," and "[a]n application for judgment [and order of sale] was filed in Circuit Court." Examination of the decision in In re Application of County Collector (1981), 101 Ill. App.3d ...


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