Brockmeyer v. Duncan
| Citation | 165 N.E.2d 294,18 Ill.2d 502 |
| Decision Date | 22 January 1960 |
| Docket Number | No. 35497,35497 |
| Parties | Joan Eleanor BROCKMEYER et al., Appellees, v. Carla DUNCAN et al. (Richard E. Mauer et al., Appellants.) |
| Court | Supreme Court of Illinois |
Lommen D. Eley, Chicago, for appellants.
Rathje, Kulp, Sabel & Sullivan, Chicago (Joseph J. Sullivan, Jr., Chicago, of counsel), for appellees.
On May 26, 1959, Richard E. Mauer and Katherine T. Mauer, his wife, filed a verified petition under section 72 of the Civil Practice Act (Ill.Rev.Stat.1957, chap. 110, par. 72), in certain partition proceedings in the circuit court of Cook County. The petition prays that the purchaser at the partition sale be found to hold the property as trustee for petitioners and for the plaintiff in the partition suit, in the same proportions as stated in the decree of partition entered December 19, 1958. On motion of the plaintiff and the purchaser at the sale, the petition was dismissed. Petitioners appeal directly to this court, a freehold being involved.
The facts as alleged in the petition show that on October 21, 1958, Joan Eleanor Brockmeyer filed her complaint for partition against Carla Duncan and others; that after being served by publication and mailing, all defendants were defaulted; and that by the decree for partition plaintiff was found to be the owner of 2/3 of parcel 1 and 17/24 of parcel 2, with the defendant Carla Duncan owning the remaining 1/3 of parcel 1 and the remaining 7/24 of parcel 2. A commissioner was appointed who thereafter reported that the premises were not susceptible of division, appraising parcel 1 at $4,500 and parcel 2 at $8,000. A decree of sale was entered on December 23, 1958, under which the successful bidder was authorized to take credit for sums necessary to redeem and pay unpaid taxes and special assessments; and at the sale, held on December 29, Janet Weaver bid the sum of $3,000 for parcel 1 and $5,334 for parcel 2. The master's report of sale was filed and approved on December 31.
On February 17, 1959, he filed his report of distribution showing unpaid taxes and special assessments on parcel 1 in the amount of $2,318.50 and on parcel 2 in the amount of $6,040.46, leaving cash due from the bidder in the sum of $681.50 on parcel 1 and nothing on parcel 2. He proposed to distribute the $681.50 as follows: for master's fees and expenses $225.86, for commissioner's fees $150, and for plaintiff's costs, expenses and attorney's fees the remainder in the amount of $305.64. On the same day an order was entered approving the master's report of distribution and directing him to proceed with the distribution.
The present petition further alleges that by deed dated November 20, 1958, and recorded December 11, 1958, petitioners acquired the interest of defendant Carla Duncan in the premises; that at the time of the partition sale the premises were worth substantially in excess of $12,500; that on information and belief Janet Weaver, the purchaser at the sale, was a nominee for the plaintiff and not a bona fide purchaser for value, and that the conduct of the plaintiff constitutes a fraud upon the petitioners.
No facts are alleged to show petitioners were free of negligence in failing to appear or make timely objection to the sale. It is undisputed that defendant Carla Duncan was served with process by publication and that petitioners had constructive notice of the proceedings. Indeed, it appears they had actual knowledge thereof, for they argue that they relied upon plaintiff's offer in the partition complaint 'to do equity as the Court may require.'
To continue reading
Request your trial
-
Hirsch v. Optima, Inc.
...not made to appear to the trial court.'" Smith, 114 Ill.2d at 222, 102 Ill.Dec. 368, 499 N.E.2d 1381, quoting Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294 (1960). Furthermore, section 2-1401 is not a substitute for an appeal, nor can it be used to shield a litigant from the cons......
-
In re Lyman
...Agreement.” The court held that Robert's motion to dismiss under section 2–619(a)(4) was well pled. Quoting Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294 (1960), the court stated that section 2–1401 “ ‘does not afford a litigant a remedy whereby he may be relieved of the conseque......
-
Reilly's Estate, In re
...would have prevented its rendition. (Esczuk v. Chicago Transit Authority (1968), 39 Ill.2d 464, 236 N.E.2d 719; Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294; Resto v. Walker (1978), 66 Ill.App.3d 733, 23 Ill.Dec. 334, 383 N.E.2d 1361; People v. Stewart (1978), 66 Ill.App.3d 34......
-
People v. Vincent, 101477.
...60 Ill.Dec. 456, 433 N.E.2d 253. The petition is subject to dismissal for want of legal or factual sufficiency. Brockmeyer v. Duncan, 18 Ill.2d 502, 165 N.E.2d 294 (1960). Thus, the petition may be dismissed upon a challenge that, even taking as true its allegations, it does not state a mer......