Andrews v. Bernhardi

• Decision Date: 30 September 1877
• Citation: 1877 WL 9869,87 Ill. 365
• Parties: WELLS ANDREWSv.CARL BERNHARDI.
• Court: Illinois Supreme Court

87 Ill. 365

1877 WL 9869 (Ill.)

WELLS ANDREWS

v.CARL BERNHARDI.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Rock Island county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

This was an action of ejectment, wherein a sale of real estate under a decree of the county court was sought to be declared void for want of jurisdiction.

The application by the administrator for leave to sell was made under the act of 1857, which provides for notice to heirs by publication, but which also provided, this “should not dispense with the issue of the summons, and the usual exertion on the part of the sheriff to serve the summons.”

The summons in the case was issued July 12, 1859, returnable to the September term of the county court, and showed the following return: “I can not, within my county, find the within named defendants, this 13th day of July, 1859. W. D. Merrill, sheriff, by C. A. McLaughlin, deputy,” etc.

The decree for the sale of the land was entered on Friday, December 23, 1859, and recited: “and it appearing to the court that due notice had been given to the defendants herein, to-wit: Maria Andrews (now Avery), widow of said deceased, and Wells Andrews, a minor heir, of this proceeding, by publishing the same in the ‘Rock Island Register,’ a newspaper published in the city and county of Rock Island, and State of Illinois, for three successive weeks, before the presenting of said petition, as required by law.”

Testimony was given on the trial to show that the minor heir resided in a different county at the time. The other material facts appear in the opinion.

Mr. HENRY CURTIS, and Mr. GEO. W. SHAW, for the appellant.

Mr. JOHN B. HAWLEY, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was ejectment, in the Rock Island circuit court, by Wells Andrews, plaintiff, and against Carl Bernhardi, defendant, to recover the possession of the west thirty feet of lot 8, in block 14, of the old town, now city, of Rock Island, which plaintiff claimed to own in fee. The general issue was pleaded, and the same tried by the court, by consent, without a jury. The court found for the defendant, and rendered a judgment against the plaintiff for the costs, to reverse which he appeals.

Appellant claimed the premises as sole heir at law of his father, Robert H. Andrews, deceased, and the defendant claimed by mesne conveyances from the purchaser at the sale of the real estate of the deceased, sold by order of court to pay the debts of the deceased.

These proceedings are attacked by appellant,...