Glos v. McKeown, 141 Ill. 288 (1892)

May 12, 1892 · Illinois Supreme Court

141 Ill. 288

Jacob Glos, impleaded, etc. v. John McKeown.

Filed at Ottawa May 12, 1892.

1. Costs—on bill to set aside tax deed as a cloud on title. It is error to require the defendant to pay the costs on bill to set aside a tax deed as a cloud on title, where no tender is averred in the bill, or is shown by the proofs, to have been made before the filing of the bill.

2. Practice in the Supreme Court—error cured by remittitur. But where the complainant, on appeal by the defendant, files in this court a remittitur of all the costs decreed to him in the trial court, this will be sufficient, under section 81 of the Practice act, to cure the error in awarding a decree to complainant for his costs,and the decree will be affirmed; but for the error in the decree below as to costs, the appellee will be required to pay all the costs of the proceedings in this court.

Appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.

Mr. H. S. Mecartney, for the appellant.

Messrs. Harbert & Daley, for the appellee.

Mr. Chief Justice Magruder

delivered the opinion of the Court:

This is a bill filed to set aside a tax deed as a cloud upon the title of the complainant. Decree was entered setting aside the deed, upon condition that complainant should pay to the defendant within a certain time the amount paid at the tax sale, together with the subsequent taxes and assessments paid by the purchaser, and interest thereon. (Alexander v. Merrick, 121 Ill. 606; Gage v. Pirtle 124 id. 502.) The decree required the defendant to pay the costs, and in this respect was erroneous, as it is not averred in the bill nor established by the proof, that complainant made any tender, before the filing of the bill, to the defendant as the holder of the tax title, -of the amount of purchase money and taxes and assessments and interest as aforesaid, in accordance with the rule laid down in Gage v. Arndt, 121 Ill. 491, Mecartney v. Morse, 137 id. 481, and Cotes v. Rohrbeck, 139 id. 532. This is the only error called to our attention in the brief of appellant.

At the March Term of this Court the appellee filed a remittitur herein of all the costs so decreed to him in the court below, and entered a motion that the decree below be in other respects, except as to such costs, affirmed. This was sufficient, under section 81 of the Practice Act, (2 Starr & Cur. Ann. Stat. page 1839,) to remove the error complained of by appellant. The error being thus obviated, the decree below must be affirmed; but, in view of the error in the decree below as to the costs, the appellee is required to pay all the costs of this proceeding in this Court, (Trustees of Schools v. Hihler, 85 Ill. 409,) and in the court below.

Decree affirmed.