id. 587.) That is the rule applicable to this case. The sanitary district was created by an act in force July 1, 1889. (Laws of 1889, p. 126.) Section 7 of the act provides that the board of trustees shall have power to provide for the drainage of the district by laying out, establishing, constructing and maintaining channels, drains, ditches and outlets for carrying off and disposing of drainage, “and also to control and dispose of any water power which may be incidentally created in the construction and use of said channels or outlets." The district, therefore, has authority to dispose of water power incidentally created by the construction of its drainage channel and may sell such power for commercial or municipal purposes. But the power at dam No. I was not incidentally created by the works of the district. The proposal to take a lease of the power from the canal commissioners and pay rental of $15.01 per horse power annually was an acknowledgment of the title of the canal commissioners to the power leased which the lessee could not dispute. The increased flow of water from the channel of the district by turning the water into the upper basin half a mile above increased the water power at the dam, which was a benefit to the canal commissioners, but it was not power of the district incidentally created by the construction of its channel and did not differ from increased power at any point below, in the Desplaines river or elsewhere. In 1903 the powers of the sanitary district were enlarged by an act in force July 1, 1903. (Laws of 1903, p. 113.) Section 5 of that act is as follows: "That the said Sanitary District of Chicago is hereby authorized to construct all such dams, water wheels and other works north of the upper basin of the Illinois and Michigan canal as may be necessary or appropriate to develop and render available the power arising from the water passing through its main channel and any auxiliary channels now, or hereafter, constructed by said district." The authority given by that act was by its terms limited to the channel north of the upper

basin of the Illinois and Michigan canal and shows the legislative understanding that the basin is the property of the Illinois and Michigan canal, although the sanitary district has rights in it recognized by the canal commissioners and provided for in the consent decree.

We have recited the only statutory provisions relied upon as giving authority to enter into the lease, and neither of them is operative to confer such power. Whether it ought to be conferred is for the General Assembly.

The decree is reversed and the cause is remanded, with directions to grant the relief prayed for.

Reversed and remanded, with directions.

(Nos. 10560-10382.)

THE PEOPLE ex rel. William L. O'Connell, County Collector, Appellee, vs. EDWARD T. NOONAN, Appellant.— THE PEOPLE ex rel. Henry Stuckart, County Collector, Appellee, vs. GEO. I. HICKS, Trustee, et al. Appellants. Opinion filed December 21, 1916-Rehearing denied Feb. 7,-1917.

1. PRACTICE—what must be set up in motion to set aside judgment for error of fact. A motion made under section 89 of the Practice act to set aside a judgment for an error of fact must set up and rely upon such fact or facts as do not appear upon the record and are unknown to the court, and which, if known, would have precluded the rendition of the judgment.

2. SAME recitals of judgment cannot be contradicted on motion to correct errors of fact. It is only concerning matters of which the judgment itself is silent that the court may entertain a motion, under section 89 of the Practice act, to correct errors of fact, and affidavits in support of such motion cannot be heard to contradict the record, even though the facts stated, if true, tend to show fraud.

3. SAME―a judgment and an order of sale need not be entered against all property at same time. Where an application for judgment and order of sale is duly made and the case is argued on the objections and taken under advisement, the court is not required

to enter judgment against all of the property at the same time but may enter judgment against part of the property at one term and the remainder at a later term, and no further application or notice to the parties is required.

4. SAME-case taken under advisement goes over to next term by operation of law. A case taken under advisement which is not disposed of at that term goes over until the next term by operation of law, and the court may at some subsequent term render judgment without additional service on either party.

5. RES JUDICATA—what is not res judicata. A finding by the county court, in sustaining a motion to quash the notice and process of sale for a delinquent special assessment, that the application for judgment is still under advisement and that no judgment has been rendered, is not res judicata of the merits of the application for judgment and is no bar to the entry of judgment.

APPEALS from the County Court of Cook county; the Hon. JOHN H. WILLIAMS, and the Hon. DAVID T. SMILEY, Judges, presiding.

EDWARD T. NOONAN, and WILLIAM J. DONLIN, for appellants.

HARRY F. ATWOOD, HARRY F. HAMLIN, and HENRY R. BALDWIN, (SAMUEL A. ETTELSON, Corporation Counsel, of counsel,) for appellees.

Mr. JUSTICE COOKE delivered the opinion of the court:

At the June term, 1913, of the county court of Cook county the county collector of Cook county made application for judgment and order of sale against certain real estate for delinquent taxes and special assessments. Among the tracts against which judgment was sought were certain lots in Edward T. Noonan's subdivision of the city of Chicago, against which there had been extended amounts aggregating about $4200 on account of a special assessment. Appellant Edward T. Noonan filed objections to the application for judgment against these lots. A hearing was had upon these objections and the cause was taken under

advisement. On July 31, 1913, judgment was rendered against all lots and tracts as to which no objections had been filed, but no judgment was then rendered against the lots involved in this appeal. Thereafter, in June, 1914, the collector advertised appellant's lots for sale under the judgment of July 31, 1913. Noonan thereupon filed his motion to quash the process and notice of sale, alleging that there had been no judgment and order of sale against said lots. The court sustained this motion, and on October 20, 1914, entered an order finding, in substance, that no judgment had been rendered against said lots on July 31, 1913, and directing that said process and notice of sale be quashed. Afterwards, on December 5, 1914, the county court rendered judgment and entered an order of sale against said lots on the application of the county collector made at the June term, 1913. The judgment order recites, among other things, that E. T. Noonan was present in person and by W. J. Donlin, his attorney, and that the order was entered with the consent of the said E. T. Noonan. It also recites that said E. T. Noonan did there in open court waive and release all errors in the judgment and order or in the prior proceedings, and agreed that no appeal should be prosecuted from said judgment, that no writ of error should be sued out thereon, and that no steps of any kind should ever be taken, by a bill in chancery or otherwise, to prevent or interfere with the collection thereafter of the said special assessment, by the sale of the property assessed or otherwise. This judgment was thereafter attacked in the county court of Cook county by two separate proceedings, one by appellant Edward T. Noonan, who on September 22, 1915, filed what he designated a motion under section 89 of the Practice act to correct certain errors of fact by striking out of the judgment order those portions which stated that he was present in person and by attorney and consented to the entry of the order and waived and released all errors, etc. The other proceeding was a motion by appellants George

I. Hicks, trustee, Joseph Hedrick, trustee, and John A. McCormick, to quash the process and notice of sale under said judgment upon two grounds: (1) That the judgment of December 5, 1914, was not a valid judgment; and (2) that said judgment was invalid because of the prior order and judgment of October 20, 1914, wherein, it was alleged, the same matters were adjudicated and settled adversely to appellees. Both motions were decided against appellants and judgments were entered accordingly. Separate appeals followed, which have been consolidated in this court.

In support of the motion of appellant Noonan to correct certain errors of fact under section 89 of the Practice act by striking out portions of the judgment order of December 5, 1914, he offered the affidavits of John E. Owens, who was the judge of the county court at the time the judgment of December 5, 1914, was rendered, and of William J. Donlin, Noonan's attorney, and also his own affidavit, which in substance set forth that said judgment of December 5, 1914, was rendered upon the last day of the term of office of said Owens; that the order was handed to said. Owens by counsel for the city of Chicago, who stated to him that the matter was pending under advisement and requested him to sign the same; that neither said Noonan nor said Donlin, his attorney, was present in court when the judgment order was signed, and that said order is incorrect in its recitals to the effect that Noonan was present in person and by attorney, that he consented to the order and that he released all errors, etc. The judgment order of October 20, 1914, was also offered in connection with the affidavits. The collector appeared and filed objections to the form and sufficiency of the motion. As a motion of this kind is in the nature of a new suit, (Domitski v. American Linseed Co. 221 Ill. 161,) the motion took the place of a declaration and the objections made amounted to a demurrer.

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