Mcdaniel v. Correll

• Decision Date: 31 December 1857
• Citation: 1857 WL 5694,9 Peck 226,19 Ill. 226,68 Am.Dec. 587
• Parties: JAMES MCDANIEL et al., Appellants,v.THOMAS CORRELL et al., Appellees.
• Court: Illinois Supreme Court

19 Ill. 226
1857 WL 5694 (Ill.)
68 Am.Dec. 587
9 Peck (IL) 226

JAMES MCDANIEL et al., Appellants,
v.
THOMAS CORRELL et al., Appellees.

Supreme Court of Illinois.

December Term, 1857.

APPEAL FROM SANGAMON.

In chancery, parties who are non-residents may be brought within the power of the court by publication, if proper steps have been taken to make service of process.

It is not within the power of the legislature to make a void procedure valid.

The act entitled “An Act to amend chap. 21 of the Revised Statutes of 1845, approved February 12, 1857,” could not cure the defect of the proceedings in this case. There was no attempt to serve process on a part of the defendants, and without this, they were not within the jurisdiction of the court.

Infant defendants, though regularly before the court, must be protected by a guardian ad litem, or all proceedings against them will be erroneous.

A part of the parties to a suit may appeal, although all the proceedings as to them may be regular, and this where the parties as to whom the proceedings are irregular do not complain.

[19 Ill. 227]

THIS was a bill in chancery, brought by Correll and others against McDaniel and others, to set aside the will of William McDaniel, deceased. There was a trial, and the jury found that the paper produced was not the will of said William McDaniel. There was a motion for a new trial, which was overruled.

The children of Martha McIntyre are devisees under the will.

The bill charges that Newton, Mary F., Joseph, Eliza T., and James, are the children of Martha, and that they are all minors.

The affidavit of James Herrin shows that the said children are non-residents.

No process ever issued for them, but publication was made to bring them before the court. They were also answered for by guardian ad litem.

On the hearing of the cause, the adult defendants, who had answered, objected to a decree for the following reasons, among others, to-wit:

1st. Because the publication of notice to non-residents does not contain all the names of the parties of the suit.

2nd. Because, in said publication, two persons, who are really complainants, are notified as being defendants

3rd. Because no process has been issued for the minor defendants--Newton McIntyre, Mary F. McIntyre, Eliza T. McIntyre, Joseph McIntyre, and James McIntyre.

The defendants admitted that there was, and is, no other suit in this court to which publication could apply. The court overruled all objections, and rendered a decree for the...