U. S. Ins. Co. v. Cent. Nat. Bank.

tial to the saving of their rights; but if it was necessary, the answers were filed, and objection to the jurisdiction was thus formally made in the court below, and is not made for the first time in this court.

But aside from these considerations, while the general rule undoubtedly is that if a defendant in chancery submits to answer without challenging the jurisdiction of the court it is too late for them afterwards to object that the complainant has a remedy at law, the rule is subject to some qualifications. In 1 Daniells' Ch. Pr., after stating the general rule, it is said: "The rule should be taken with the qualification that it is competent for the court to grant the relief sought, and that it has jurisdiction of the subject matter." And to the same effect, see Cooper's Equity, Pl. 161, side-paging; Moore v. Elmendorf, 11 Paige, 277. In Kimball v. Walker, 30 Ill. 482, the court says: "This is no doubt the rule as to the parties, but we hold it is in the power of the court at any time to interpose the objection, and thus prevent drawing into the vortex of a court of chancery matters purely cognizable in a court of law."

The distinction is not to be overlooked between cases over which a court of equity has concurrent jurisdiction with a court of law, and those cases over which it has no jurisdiction. In the former class, the party waives his right to question the jurisdiction by submitting to answer on the merits, but not in the latter. While, therefore, in the case at bar, the court had jurisdiction to the extent of compelling a discovery, when the discovery failed, as the jurisdiction or right of the court to retain the case was dependent on discovery, the court had no power to try the merits of the case, upon a traverse of the answer; and this was an objection that might be taken advantage of at any stage of the proceedings. We are, therefore, of the opinion, that the point made that the objection to the jurisdiction of the court came too late, is not well taken.

For the reasons stated in this, and in the opinion in Philadelphia Fire Insurance case, the decree of the court below must be reversed as to the plaintiff in error, and the cause be remanded for further proceedings, not inconsistent with said opinions. Reversed and remanded.

Blanchard v. McCuller.

MARVIN BLANCHARD

V.

MARY MCCULLER.

PROMISSORY NOTE-GUARANTY BY THIRD PERSON AFTER DELIVERYCONSIDERATION.-In order to establish a legal and binding undertaking of guaranty against a third party who indorses a note after it has been executed and delivered to the payee, a new and sufficient consideration for the indorsement must be shown.

ERROR to the Superior Court of Cook; county the Hon. JoSEPH E. GARY, Judge, presiding. Opinion filed November 8,

1880.

Mr. MARVIN BLANCHARD, pro se; that the presumptive liability incurred by indorsing a note by a third person before delivery is that of joint maker or guarantor, cited Story on Promissory Notes, § 58; Carrol v. Weld, 13 Ill. 683; Glickauf v. Kaufmann, 73 Ill. 378; Boynton v. Pierce 79 Ill. 145; 2 Parsons on Contracts, 10.

If the indorsement is made after delivery to the payee, the undertaking is collateral and presumed to be that of an indorser, and the consideration must be proved: „Klein v. Currier, 14 Ill. 237; White v. Weaver, 41 Ill. 409; Warden v. Salter, 90 Ill. 160; Eberhart v. Page, 89 Ill. 550; Edwards on Bills, 205; Story on Promissory Notes, § 133; 2 Parsons on Contracts, 563; Shafer v. Bank, 59 Pa. St. 148; Hall v. Newcomb, 7 Hill, 416; Spies v. Gilmore, 1 N. Y. 321; Phelps v. Vischer, 50 N. Y. 69; Greer v. Jones, 7 Johns. 581; Terry v. Prince, 4 Pick. 385; Irish v. Cutler, 31 Me. 536; Hammond v. Chamberlain, 56 Vt. 406; Good v. Martin, 5 Otto, 90; Nelson v. Harrington, 16 Gray, 139; Green v. Slopard, 5 Allen,

589.

The intention of the parties at the time of the transaction is to be carried out: Story on Promissory Notes, § 479; Good v. Martin, 5 Otto, 90; Hall v. Farmer, 5 Denio, 484; Brewster v. Silence. 4 Seld. 207.

Blanchard v. McCuller.

Mere forbearance to sue without any request or agreement is not a consideration for a guaranty: Mercorney v. Stanley, S Cush. 85.

MCALLISTER, P. J. This action was by McCuller, defendant in error here, to recover upon three promissory notes made by one French, and payable to plaintiff below, the declaration alleging that after they were respectively due and unpaid, Blanchard, in consideration that the plaintiff would forbear the collection of them from French, the maker, for a reasonable time from that date, guarantied the payment of them by indorsing his name thereon. There was a verdict for plaintiff below, on which the court, overruling the defendant's motion for a new trial, gave judgment, and the case comes here on error. The bill of exceptions contains all the evidence, which fails to show a cause of action. It appears that such indorsement was made after the notes were respectively made and delivered to the payce, but before either of them had matured; and it was in no respect connected with the original consideration, or the transaction out of which said notes arose. Such being the case, it is clear law that a new and sufficient consideration for the indorsement was required to be shown, in order to establish a legal and binding undertaking of guaranty on the part of Blanchard. 2 Parsons on Notes and Bills, 125-6, and cases in notes.

A critical examination of the evidence fails to disclose any proof of the particular consideration set out, or any other regarded in law as sufficient. Therefore, an essential element of a cause of action is wanting, and it was an error of law to give judgment for the plaintiff, when her evidence failed to show any sufficient consideration for the alleged promise. Indianapolis, B. & W. R. R. v. Rhodes, 76 Ill. 285.

The judgment of the court below must be reversed.

Reversed and remanded.

Gage v. Busse.

HENRY H. GAGE

V.

CHRISTIAN C. BUSSE ET AL.

1. SETTING ASIDE TAX SALE-BURDEN OF PROOF.-In a proceeding to set aside a tax sale and for the cancellation of certificates of such sale, on the ground of a levy for an illegal purpose, the burden of proof is upon the complainant to sustain the allegation of an illegal levy.

2. EVIDENCE-SUFFICIENCY.-Where the only proof in support of the allegations in the bill that the levy was for an illegal purpose, was a transcript of the proceedings in county court upon judgment for delinquent taxes, and a copy of an opinion of the Supreme Court in a case between other parties, relating to the same levy, the evidence is not sufficient to sustain the averments of the bill.

3. TRANSCRIPT OF PROCEEDINGS IN COUNTY COURT.-The judgment of the county court in this case, had in proceedings for judgment for delinquent taxes, does not find that any of the illegal items complained of were included in the city tax; and the judgment appears to have been entered without appearance or objection by the complainants. Objections to the tax, made in such proceedings by others, cannot avail the complainants as proof of the averments in their bill.

4. OPINION OF SUPREME COURT-STATEMENT OF FACTS.-A statement of facts in an opinion of the Supreme Court, made in a case between other parties, if it can in any view be regarded as an adjudication upon matters of fact, is not binding upon the parties in this case.

5. OPINION OF SUPREME COURT NOT A JUDGMENT.-An opinion filed by a court upon the decision of any question pending upon it, is not a judgment, and becomes no part of the record; but is merely a statement or discussion of the grounds or principles upon which the judgment of the court is based.

6.

RECITAL OF FACTS IN A DECREE.-Recitals in a decree constitute one of the recognized modes of preserving the evidence in chancery cases. Where, however, there is a certificate of evidence purporting to contain all the evidence, that alone will be regarded upon appeal, in considering the evidence in the case.

ERROR to the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding. Opinion filed November 8, 1880.

Mr. A. N. GAGE, for plaintiff in error; that county courts are courts of general jurisdiction in the matter of the sale of lands for delinquent taxes, cited Constitution, Art. VI, § 18; Graceland Cemetery v. The People, 92 Ill. 619.

VOL. VII. 28

Gage v. Busse.

Although a judgment for taxes may be defeated in a collateral action by proof of certain facts, yet where no attempt is made to prove those facts, the statute does not apply: Chestnut v. Marsh, 12 Ill. 173.

A judgment, though erroneous, is valid and binding until reversed or set aside by some appropriate remedy : Mayo v. Ah Loy, 32 Cal. 479; Porter v. Purdy, 29 N. Y. 106; People v. Brislin, 80 Ill. 423; C. & N. W. R. R. v. The People, 83 Ill. 467; Andrews v. The People, 84 Ill. 28; Graceland Cemetery v. The People, 92 Ill. 619.

Title acquired under a judicial sale cannot be questioned collaterally except for fraud in which the purchaser was a participant Griffith v. Bogart, 18 Iow. 158.

This is a judgment in rem against the property: Rev. Stat. Chap. 120, § 191; Pidgeon v. The People, 36 Ill. 249; Chestnut v. Marsh, 12 Ill. 173; Spellman v. Curtenius, 12 Ill. 409; Olcott v. The People, 5 Gilm. 481; Brown v. Joliet, 22 Ill. 123; The People v. Nichols, 49 Ill. 517; St. John v. The City of East St. Louis, 50 Ill. 92; Atkins v. Hinman, 2 Gilm. 437. And being in rem, it is binding on all the world: Starkie on Evidence, §320; Wells on Res Adjudicata, 504; Cransdon v. Leonard, 4 Cranch. 434; Golston v. Hoyt, 13 Johns. 561; McCahill v. Insurance Co. 26 N. J. Eq. 531; Monroe v. Douglass, 4 Sandf. Ch. 134; Bradstreet v. Neptune Ins. Co. 3 Sumner, 600.

Judgments cannot be collaterally assailed: Young v. Thompson, 14 Ill. 380; Hobson v. Ewan, 62 Ill. 146; Goudy v. Hall, 36 Ill. 313; Young v. Lorain, 11 Ill. 625; Conover v. Musgrave, 68 Il. 58; Osgood v. Blackmore, 59 Ill. 261; Prescott v. Chicago, 60 Ill. 121; Feaster v. Fleming, 56 Ill. 457; Thompson v. Morris, 57 Ill. 333; Rogers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378; Chiniquy v. The People, 78 Ill.

570.

Objection that portions of the tax were unconstitutional should have been urged in the court below: Karnes v. The People, 73 Ill. 274.

The records of a court import absolute verity and evidence to prove want of jurisdiction will not be received if the records