Cohen v. State of Illinois

HARRY S. COWEN, Attorney for claimant GEORGE F. BARRETT, Attorney General, for respondent, WM. L. MORGAN and LEONARD H. L AWRENCE, Assistant Attorneys General, of counsel. \ RETAILERS’ OCCUPATIONAL TAX ACT-payment of tax thereunderafter due notice, proper Idearing, and subsequent trml sin municipal cmwt and judgment-therefor-cannot be recovere-s being paid [*11] c

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under a mistake of pact. Where claimant fails to deny that the Department of Finance took and observed all procedural steps'required to be taken by it prior to bringing its actioll to collect, and failed to plead that the taxes were erroneously assessed, it must be assumed that at the time of entcry of judgment in the Municipal Court, he owed that amount to the State. The judgment was subsequently affirmed by the Supreme Court of Illinois. ~umsDIcnox-Afirmation of a judgment of a lower court by the Supreme Court of Illanois is a pnal adjudication o$ such judgment and it must be regarded as frea from all 'error. After the Supreme Court affirmed judgment of the Municipal Court, claimant succeeded in having the Municipal Court vacate the said same judgment on the ground that the Municipal Court lacked jurisdiction and therefore the said judgment was void ab initio. The Court of Claims held the Municipal Court was without jurisdiction to enter an order to vacate its judgment as being void ab initio on the ground that when a judgment is affirmed by the Supreme Court, all questions, whether raised by assignment of error . or which might have been raised on the record, are finally adjudicated and such judgment must be regarded as free from all error. People vs.

Superaor Cart , 234 Ill. 186; GOUM vs. Sternberg, .128 Ill. 510.

. DAMRON, J; On December 9, 1942, the above named claimant filed a complaint in this Court alleging that he is entitled to a refund in the sum of $1,785.93 from the State, by reason I of an erroneous payment of that amount heretofore made by him to the Department of Finance on December 7, 1938.

The claimant, by his attorney, and the respondent, by its Attorney General, have filed herein a stipulation of facts which they agree shall be considered as in lieu of ' I a transcript of evidence pursuant to Rule 26 of this Court and shall constitute the record in this case, and is in words and figures as follows: 1. That on or about September 4, 1937, a suit had been filed by the Department of Finance of the State of Illinois, against the claimant herein, in the Municipal Court of Chicago, Case No. 2779835, claiming the sum of,$1,704.67 in an action o€ debt, pursuant to the Retailers' Occupation Tax Act, seeking to recover a judgment for said amount for an indebtedness alleged to be due under the said Act, based upon a tax assessment as determined by the said Department of Finance. 11- [*302] c , 2. That on December 23, 1937, a judgment had been recovered against the claimant in the aforesaid suit in the sum of $1,704.67 and costs, after the said Municipal Court had overruled the defense of the claimant as incorporated in his Second Amended Statement of Defense, in which he had questioned the jurisdiction of the Municipal Court of Chicago over the subject matter of said suit, and thereafter, on December 7, 1938, after the issuance and service of an .execution upon the claimant, he had paid in satisfaction of the aforesaid judgment, the sum of $1,785.93, which represents the amount of said judgment plus statutory interest, but exclusive of court costs. 3. That the said defendant perfected an appeal to the Supreme Court of Illinois, wherein the judgment was affirmed and which is found in Volume 369 of the Illinois Reports beginning at page 511. 4. That the claimant (defendant) herein did not rdeny and does not now (1) that he had been notified of the hearing to fix his tax liability as required by the act, or ( 2 ) that a hearing was had pursuant to such notice, or ( 3 ) that a deficiency assessment in the amount claimed had been made by the department, or ( 4 ) that he had been notified of the assessment, or ( 5 ) that he had not paid it, or ( 6 ) that he had taken no steps within the time fixed by section 1 2 of the act to have the finding of th6 department judicially determined by suing out a writ of certiorari, nor did he charge the department with failurE? to observe all the procedural steps required to be taken by it prior to bringing its action to collect. 5. That on November 27, 1942, an order was entered in the aforesaid cause decreeing said judgment as being absolutely void u0 initio and unenforcible, inasmuch as the Municipal Court had lacked the requisite jurisdiction over the subject matter of said cause. , 6. That by reason of the foregoing the aforesaid judgment was vacated, set aside, held for naught and expunged from, the records in the Municipal Court, and said cause was dismissed. 7. That th; claimant has received no payment, either in full or to apply on account of the aforesaid claim, either from the respondent or any of its departments or divisions having supervision and control of the matter and issues involved in this cause. 8. That after the Municipal Court of Chicago had decreed its , judgment in this case as being absolutely void a0 anatio and unenforcible, and had vacated said judgment on November 27, 1942, thereafter, on February 1, 1944, claimant filed a claim for credit or refund with the Department of Finance asking a refund of the moneys paid previously to the said Department in satisfaction of the aforesaid void judgment. Said claim for credit was mailed to the Department of Finance on February 1, 1944 and receipt thereof was ‘acknowledged by the said Department on February 7, 1944. The claim for credit was based upon a payment predicated upon a void judgment and was filed after the court had vacated the said judgment as void. Said claim for credit was denied by the Department and certiorari to review said e [*9] .

record was perfected to the Circuit Court of Cook County. On May 8, 1946, the Circuit Court of Cook County denied the writ of certiorari for the reason that that court was without jurisdicion in the premises.

0 It is to be noted from examination of this record that claimant in seeking a refund of $1,785.93 from the respondent bases his claim wholly on a claimed erroneous payment of said amount paid by him under a void judgment of the Municipal Court of the City of Chicago. It further appears from the record that from this judgment claimant appealed to the Supreme Court of this State where the judgment was affirmed. Department of Filzance . vs. David Cohen, 369 Ill. 510, In that case he did not deny that he owed the respondent the above amount of money assessed, against him but challenged the, constitutionality of the Act. In the opinion, the Court noted that the affi- 1 davit of defense did not deny that appellant had been notified of the hearing to fix his tax liability as required by the Act or that a hearing was had pursuant to such notice, or that a deficiency assessment in the amount claimed had been made by the Department, or that he had been notified of the assessment, or that he had not paid it or that he had taken no steps within the time fixed by Section 12 of the Act to have the finding of the Department judicially determined by suing out a writ of certiorari, nor did he charge the Department with failure to observe all the procedural steps required to be taken by it prior to bringing its action to colleot. A motion was made by the Department to strike defendant's affidavit on the ground it failed to state a defense.'The motion was allowed and judgment entered for the amount of deficiency and penalties claimed. Even here the claimant did not deny or plead that the taxes assessed against him were erroneously assessed and by his failure to plead this fact, it must be assumed that at the time of the entry of [*304] judgment in the Municipal Court, he owed that amount to the State of Illinois.

It is to be noted that the judgment obtained against this claimant was affirmed on October 17,1938 by the Supreme Court of this State.

This record contains a ‘document marked “Exhibit B ” which is in words and figures as follows : “This matter coming on for hearing upon motion of DAVID COHEP, doing business as Embassy Drug Shop, defendant in the above entitled cause, for leave to file his petition to vacate and set aside the judgment heretofore entered herein against him on December 23, 1937, in the sum of $1,704.67 and costs, and Upon the reading of said petition, it appearing to the Court that said defendant has a full and complete defense to the claim which is the subject matter of the above entitled cause and upon which the aforesaid judgment is predicated, in that the municipal’ Court of Chicago had not acquired jurisdiction over the subject matter of said cause, and that, therefore, the aforesaid judgment is absolutely void ab initio and unenforceable.

I T IS THEREFORE OBDERED, ADJUWEDAN D DECREED that leave b’e and the same hereby is, given to the said defendant to file the aforesaid petition to vacate the judgment heretofore entered herein against him on December 23, 1937, in the sum of $1,704.67 and costs.

IT IN FURTHER ORDERED, ADJUDGED AND DECREED that the aforesaid judgment be, and the same hereby is, declared to be void and unenforceable, and said judgment be and the same is hereby vacated, set aside, held for naught, and expunged from the records in the above entitled cause, and said cause be, and the same hereby is, dismissed, \ without costs.”

ENTER: (Signed) JOSEPH J. DRUCPER, Judge.

It is to be noted that claimant bases his right to recover from the respondent on the order of the Municipal Court of Chicago which was entered in said Court on the 27th day of kovember 1942.

By obtaining this order of the Municipal Court Judge, claimant predicates his right to recover on a “void judgment’’ and contends that since this order was entered, he paid the judgment as a mistake of fact and has filed herein a voluminous brief.

[*305] We hold that the order of the Municipal Court of , Chicago finding that its judgment against the claimant in favor of the Department of Finance was void ab initio, is not binding and that the Municipal Court .was without jurisdiction to enter sach an order.

A similar situation arose before our Supreme Court in The People vs. Circuit Court 369 111. Sup. 438. This was a case wherein one Karatx was tried and found guilty . in the Criminal Court of Cook County for conspiracy to defraud. He was sentenced to serve a term of from one to five years in the Illinois State Penitentiary and to pay a-fine of $2,000.00 and costs. That judgment of conviction was confirmed in the Appellate Court, People vs. Barry, 287 Ill. App. 12. Upon further review, the Supreme Court confirmed the judgment of the Appellate Court. PeopZe vs. Karatz, 365 Ill. 255. Thereafter, while the sheriff of Cook County having charge of Karatz under a mittimus issued out of the Criminal Court was proceeding to deliver him to the Illinois State Penitentiary, Joliet, a writ of habeas corpus was served upon him, issued by a Judge of the Circuit Court of Will C’ounty. In this case, the Court said “the sole question presented in this cause is that of the jurisdiction of the Circuit Court of Will County and Wilson, one of the judges of the Court, to issue the writ of habeas corpus. The ground on which a writ was sought was that the mittimus under which Karatz was held was void because the grand jury which returned the indictment against him was an illegal and void grand jury.”

In holding the Circuit Court of Will County was without power or authority to enter orders concerning the case, the Supreme Court said on page 440 of Ill. Sup. 369, “It has been so frequently held by this court as to be plain and settled law in this State, of which all inferior courts must be held to

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[*306] have knowledge, that when a judgment is affirmed by this court all questions, whether raised by assignment of error or which might have been raised on the record, are finally adjudicated, and such judgment * must be regarded as free from all error. (People v. Superior Court, 234 111. 186; Gould v. Sternberg, 128 id, 510.) The adjudication of this court in People v. Karatz, supra, affirmed the oonviction of Karatz and pronounced the judgment against him a valid judgment.

While it is true that circuit and superior courts and the judges thereof have concurrent jurisdiction with this court in habeas corpus proceedings, that fact, as this court has held, does not authorize those courts or judges thereof to review a judgment of this Court, by the . writ of habeas corpus. When this court, in the exercise of its appellate jurisdiction, has determined the validity of a judgment of the lower court, the judges of the circuit and superior courts are bound by that judgmebt and are without power or authority, by habeas corpus or ’ otherwise, to pasg upon its validity. This is,not only well settled in this State but is so thoroughly founded on principles of orderly administration of the law that there ought not to be any judge who doubts or is unfamiliar with it.”

Many other cases could be cited to the same effect.

The law as announced in the Raratz case is controlling here.

The claimant having failed to establish his right to an award by a preponderance of evidence, the complaint is dismissed.

Award denied.

(No. 3 8 5 9 4 l a i m a n t awarded $4,451.79.)

FAYE FRENCH, Claimant, vs. STATE OF .ILLINOIS, Respondent.

Opinion filed Jun0 5 , 1947.

FRANK W. PURVIS

and F RANK EAGLETON, for claimant.

GEORGE F. BARRETT, Attorney General, and C. ARTHUR NEBEL,,Assistant Attorney General, for respondent.

WORKMEN’S COMPENSATION AcT-wlUen evidence w f i c i e n t to prove a causal connection between the accidental i n j u i y sustained by the d e -‘ ceased and his subsequent deiath-and that said acndental anjury had a [*307] causative effect in (aggravating his pre-existing disease- when award for compensation for death of employee may be made tinder. Where an employee sustains accidental injuries, arising out of and in the course of his employment and the evidence shows that said injury had a causative effect in aggravating his pre-existing disease and thereby hastened his death, the same is held to have occurred in the course of his employment and an award may be made therefor under Section 7 of the Act to those legally entitled thereto upon compliance with the terms thereof.

Bergstrom, J. This claim was denied by an Opinion filed at the January 1946 term of this Court. Upon oral motion on January 9, 1946 a rehearing was allowed. Additional testimony was taken on June 18, 1946 and September 20, 1946.

We fohnd, in the opinion heretofore filed at the January 1946 term of this Court, that no jurisdictional questions were involved, and stated therein with considerable detail the circumstances of decedent’s injury and subsequent death. The evidence shows that decedent was injured during the course of and out of his employment by respondent. The only question for determination is whether there was a causal connection between decedent’s injury and his subsequent death, and whether his injury had a causative effect in aggravating his pre-existing disease and thereby hastened his death. This claim was denied in our previous opinion for the reason that, claimant had failed to show this by a preponderance of the evidence.

At the hearing two witnesses testified that prior to the injury decedent was apparently in the best of health, and that he had no occasion to see or need a doctor for many years previous to the date of the injury. They further testified that after the injury decedent complained of pains in the abdominal region and thereafter his health began to fail rapidly. Dr. Robert Flentje testified [*308] that he had practiced medicine for 35 years, and that a blow such as decedent received would aggravate an existing cancerous condition. Commissioner Jenkins asked Dr.

Flentje some questions, which were answered as follows : Q. In your opinion, Doctor, would such a blow aggravate a cancerous condition and contribute to or hasten the progress of such cancerous condition?

A. It could.

Q. And in your judgment would it contribute to and hasten the death of a person suffering from such condition?

A. It would. I might simplify that by saying that a cancerous condition is one of the eating away of the flesh and the deeper it goes the more nearly it comes to the larger vessels.

Q. It is a progressive condition?

A. It is a progressive condition.

Q. A. .

And its progress would be hastened by such a blow?

It would be.

. Counsel for claimant asked the Doctor: , Q. Dr. Flentje, in your opinion is it also true that a blow such as Mr. French is described to have received would considerably \ hasten his death?

A. Yes, it would.

\ Dr. J. F. Lawson of Sullivan, Illinois, signed a statement on July 9, 1946, which was filed in the record and reads as follows : ,. “This is to certify that I am a regular licensed physician in the State of Illinois and have been for the past forty years; that I was personally acquainted with Seth French, during his lifetime, and that I treated him on March 24th, 25th, 26th: 28th and 30th of 1938 for gunshot wounds he received in apprehending some postoffice robbers at Allenville, Illinois, and that the said Seth French received wounds in the chest, arms and face, but th?t there was no buckshot in the abdomen.

That at the time I treated the said Seth French, he had no indication of cancer; that he was healthy and although I did not treat him for a number of years after‘that, I did see him at different times, and from general appearance, he showed no indication of cancer.

I further certify that a blow such as Seth French received in the , abdomen at that time would at least aggravate an existing cancer if he had such at that time.”

[*309] 309 , Commissioner Jenkins, after hearing the evidence, made a finding that decedent’s cancerous condition was aggravated by the injury received while in the course of his employment; that there was a capsal connection between such injury and the death of decedent and recommended an award to decedent’s widow, Faye French.

After a careful review of all the evidence this Court concurs with his views. In a similar chse, #impsow vs. Irzdustrial Commission, 337 Ill. 454, the Supreme Court said on page 459 “The evidence shows that prior to the day of the accident Carr was a strong, vigorous and active man. He had never been sick and had never required the services of a physician. The evidence of Hammond shows what happened at the time Carr pulled on the rope. He was never well after that time but grew steadily worse until his death.

There is no question, under the evidence, but that he died from a lymphatic carcoma. There is medical evidence which shows that the

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sarcoma was the result of the strain or sprain of the muscles of the back. If the death is fairly chargeable to an accident suffered i p the course of his employment as an efficient cause, compensation may be awarded although the sarcoma existed prior to the accident, provided the sarcoma was aggravated or accelerated by the injury, but there must be a direct relation between the accident and the subsequent death. (Sprangfield Cad Go. v. Indiistrzaz C m . , 303 Ill. 455; Jones Faundry Co. v. Indtistraal Cwn.., 303 id. 410; KklZer v. Industrial Corn., 302 id. 610; Centralza CouZ Co. v. Imdxstrtal Corn., 301 id. 418.) If the act of Carr in pulling on the rope either caused a sarcoma or aggravated or acce lerated a sarcoma which already existed, and his death resulted therefrom, his widow was entitled to compensation.”

There were no children under 16 years of age dependent upon the deceased for support at the time of his , death. His widow, Faye French, survives him. His earnings from respondent were $1,787.09 for the year next preceding his death; and the compensation rate would be $15.00 per week, increased by 171/%, the injury having oclcurred after July 1, 1943, or $17.63. Under Section 7, ’ paragraphs a and 1of the Workmen’s Compensation Act, the widow,’Faye French, would be entitled to an award

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[*310] of $4,700.00, less $248.21 being the amount of compensation paid, or $4,451,79.

Eileen Jones, First National Bank Building, Springfield, Illinois, was employed to take and transcribe the evidence in this case, and has rendered a bill in the amount of $28.20. The Court, finds that the amount charged is fair, reasonable and customary.

An award is entered in favor of Eileen Jones in the amount of $28.20, payable forthwith.

An award is also entered in favor of the claimant, Faye French, in the amount of $4,451.79, to be paid to her as follows:

$2,820.80, which has accrued and is payable forthwith; $1,630.99, payable in weekly installments of $17.63 beginning on the 16th day of June, 1947 for a period of 92 weeks, with an additional final payment of $9.03.

.All future payments being subject to the terms and conditions of the Workmen's Compensation Act of Illinois, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary.

This award is subject to the approval of the Governor as provided in Section 3 of "An Act concerning the payment of compensation awards to State employees."