This was a bill in equity, brought by Christian C. Busse and Edwin Sturtevant, praying that three certificates of sale for the taxes of 1875, of certain lots in the city of Chicago, of which they claim to be seized in fee, be declared void and ordered to be surrendered up and cancelled, and that the county clerk of Cook county be enjoined from executing to Henry H. Gage, the holder of said certificates, a tax-deed thereon. The cause was heard in the court below on bill, answer, replication and proofs, and a decree rendered in favor of the complainants, in accordance with the prayer of the bill.
The complainants averments, showing the invalidity of the sale, áre to the effect that a considerable portion of the tax levied by the city of Chicago for the year 1875 was illegal; that in the appropriation ordinance and in the ordinance making’ the levy of taxes for that year, there were.included certain illegal items particularly specified in the bill, amounting in all to the sum of $392,000, and that the tax levy containing such illegal items was certified to the county clerk of Cook county, and by him extended, in common with the state, county, school and other taxes upon the property in question. These averments were in no way admitted by the answer, and the burden was on the complainants to sustain them by proof.
The only evidence offered in support of these averments consisted of a transcript of the proceedings and judgment of the county court in the matter of the application of the county treasurer for judgment for the delinquent taxes in said county for the year 1875, and the judgment and opinion of the Supreme Court in the case of Law v. The People ex rel., etc., as reported in the eighty-seventh volume of the Illinois ¡Reports, at page 385. These documents were all received in evidence against the objection of the defendant.
We are unable to perceive how this evidence can be held to sustain the case made by the bill. The judgment of the county court does not find that any of the illegal items complained of were in fact included in the city tax. So far as the complainants’property is concerned, judgment seems to have been entered without any appearance or objection on their part. Divers objections, it is true, were filed by other tax-payers and overruled by the court, but it does not appear that the court, in adjudicating upon such objections, ascertained or determined the several items of which the city tax was composed, nor does the judgment order contain any recital on that subject. Whatever may have been the objections urged in the county court, or the evidence introduced in support of such objections, we know of no principle upon which such objections and evidence can avail the complainants in this case as proof of their averments here.
¡Nor are we able to perceive any legal principle upon which the statements of fact made by the Supreme Court in their opinion, in the case of Law v. The People, etc., can he resorted to by the complainant here as evidence of such facts. Hone of the parties to this suit were parties to the appeal upon which that opinion was delivered. If it could in any view be regarded as as an adjudication, upon matters of fact, it was not an adjudication between the parties to this suit, and was not binding upon them. But we cannot regard it as in any sense a judicial finding of the facts which are therein recited. An opinion filed by a court upon the decision of any question pending before 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. It may undoubtedly be resorted to for the purpose of ascertaining the principles of law applicable to that and other similar cases, but it cannot be regarded as being in itself a judicial determination of the questions of fact, which arise in the course of the discussion.
It follows that the averments of the bill in relation to ilO legal items being included in the city tax, are wholly unsupported by evidence. Hor can the decree be sustained by resorting to the recitals of facts found from the evidence contained in the decree itself. Doubtless had there been no certificate of evidence, those recitals would have been sufficient to support the decree. Such recitals in the decree constitute one of the recognized modes of preserving the evidence in chancery cases. Where, however, there is, as in this case, a certificate of evidence, purporting upon its face to contain all the evidence given by the parties upon the hearing, we must look to the certificate, and to that alone, for the evidence in the case.
Other questions are discussed by counsel, but as the complainants have wholly failed to sustain the averments of their bill, we are disinclined to consider questions which will arise only after proper proofs have been made.
The decree will be reversed, and the cause remanded for further proceedings.
Decree reversed.