Randall v. Songer
| Decision Date | 30 November 1854 |
| Citation | 6 Peck 27,16 Ill. 27,1854 WL 4750 |
| Court | Illinois Supreme Court |
| Parties | JOHN R. RANDALLv.JACOB SONGER, Administrator, &c. |
16 Ill. 27
1854 WL 4750 (Ill.)
6 Peck (IL) 27
JOHN R. RANDALL
v.
JACOB SONGER, Administrator, &c.
Supreme Court of Illinois.
November Term, 1854.
It is not enough for a decree to recite that the defendant has been duly served, but the summons or advertisement should appear in the record.
MODIFIED: 27 Ill. 125, 148, 154; 57 Ill. 84.
THIS cause was heard before HARLAN, Judge, at March term, 1851, of the Clay Circuit Court.
R. S. NELSON for Plaintiff in Error.BEECHER and HOUTS, for Defendant in Error.
TREAT, C. J.
This was a bill in chancery to foreclose a mortgage. A summons was returned not served. An affidavit of the non-residence of the mortgagor appears in the record; and the decree of foreclosure states, that “it appears to the satisfaction of the court, that due notice has been given by publication, of the pendency of this suit.” There is nothing else in the record to show that the defendant was before the court. This is not sufficient to support the decree. In order to sustain a decree by default, it should affirmatively appear that the defendant has been regularly brought into court. A complainant is not entitled to a decree pro confesso, until the defendant has been served with process, or has been regularly notified of the pendency of the suit. The latter must have actual or constructive notice of the proceeding against him, before his default
can be properly...To continue reading
Request your trial
-
Hartung v. Hartung
... ... The summons or advertisement should appear in the record, so that the court may determine whether the statute has been complied with or not: Randall v. Sanger, 16 Ill. 27; Vairin v. Edmonson, 5 Gilm. 270; Townsend v. Townsend, 21 Ill. 540; Herdman v. Short, 18 Ill. 59.Mr. J. C. THOMPSON, for ... ...
-
Law v. Grommes
... ... And in Randall v. Songer, 16 Ill. 27, speaking of notice in chancery: This advertisement is the act of the clerk, and it performs the same office as process. It is ... ...
-
Reddick v. the President
...decree will be protected, although the record may not furnish any evidence of a summons or advertisement. The cases of Randall v. Songer, 16 Ill. 27, and Vairin v. Edmonson, 5 Gilm. 272, modified. Upon writ of error in a chancery cause, the Supreme Court will not [27 Ill. 146]presume that a......
-
Botsford v. O'conner
... ... In Reddick et al. v. The State Bank, 27 Ill. 145, the court modified, to some extent, the rule stated in Randall v. Songer, 16 Ill. 27, and in Vairin v. Edmonson, 5 Gilm. 272, and say, it is to be presumed that no court will state of record the existence of ... ...