Mount Carbon Coal & Railroad v. Andrews

Citations

• 53 Ill. 176

Syllabus

<p>1. Pleading—denying authority of an officer. In an action of replevin, the defendant justified the taking of the property, as collector of taxes for a municipal corporation, and the plaintiff replied that he was not the “ legally and duly appointed collector,” etc. On demurrer, the replication was held bad, because it did not aver he was not collector, either de jure or de facto.</p> <p>2. Officer—de jure and de facto—in what proceeding determinable. Whether the collector was lawfully in office or not, could not be determined in the action of replevin.</p> <p>3. Huí. tiel corporation—where pleadable. A replication in the same action, which alleged there was no such corporation as that for which the defendant claimed to be collector of taxes, was also held bad, because the question whether such town had ever been incorporated, or had forfeited its franchises, could not be tried in such collateral proceeding.</p> <p>4. Validity of tax—cannot be questioned in replevin. The question of the validity of a tax can not be considered in an action of replevin; so where the defendant in such action justified, on the ground that he seized the property as collector of taxes for a town, the plaintiff can not properly, in that proceeding, question the legality of the ordinance under which the tax was levied.</p> <p>5. A replication to such a plea, denying that there were any taxes or assessments due and owing from the plaintiff to the town, would be bad on demurrer, because the effect of it would be to open the entire question as to the legality of the tax, and the manner of its being levied.</p> <p>6. So, too, a replication averring that the property in controversy was not liable to be distrained for the payment of taxes, was held bad, because no property is exempt from seizure and sale for taxes due from the owner, and under the pleading the prohibited question, as to the legality of the tax, would be presented.</p> <p>7. Same—dismissal of action. Should it be made to appear