Barnett v. Wolf

• Decision Date: 30 September 1873
• Citation: 1873 WL 8550,70 Ill. 76
• Parties: ANZALETTA BARNETTv.PATRICK WOLF.
• Court: Illinois Supreme Court

70 Ill. 76

1873 WL 8550 (Ill.)

ANZALETTA BARNETT

v.PATRICK WOLF.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

This was an action of ejectment, brought by Anzaletta Barnett, against Patrick Wolf, for the recovery of the northwest quarter of section 35, township 32 north, range 4 east of the third principal meridian, in LaSalle county. The leading facts of the case will appear in the opinion of the court.

Messrs. ELDRIDGE & LEWIS, for the appellant.

Messrs. BICKFORD, BOWEN & MALONEY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was ejectment, for the recovery of a quarter section of land, in the LaSalle circuit court. On the trial below, plaintiff traced title from her grandfather, the patentee, through her mother, to herself; and to rebut her prima facie title appellee introduced a decree of the county court of LaSalle county licensing the executor of John Palmer, the grandfather of appellant, to sell this land for the payment of debts; a deed from the executor, Wm. C. Richardson, on a sale under the decree, to Edward C. Henshaw, with an order of the court approving the sale; also mesne conveyances, so as to complete a regular chain of title from Henshaw to appellee.

The principal controversy in the case grows out of the sale of the land by the executor to Henshaw. If it is so far regular as to pass the title, then appellant was divested of title, and has no right to recover; and that depends upon whether the county court acquired jurisdiction of the subject matter, and the person of the owner, as nothing is perceived in the subsequent proceedings which would prevent the title from passing to the grantee of the executor.

That the county court had jurisdiction of the subject matter, is contested. The notice of the application for the sale of the land describes a different quarter from that in controversy. The true description of the land is, the north-west quarter of section 35, township 32 north, range 4 east of the third principal meridian, and the land is so described in the petition, executor's deed and report, etc., whilst it is described in the published notice, on file in the county court, of the application for leave to sell, as the north-west quarter of section 32, in the same township and range. Thus it will be seen that this notice of application for leave to sell did not describe the land named in the petition and decree.

The decree of the county court finds that the legal and proper notice of the application to sell the north-west quarter of section 35 was duly made in the ““Ottawa Republican,” and that it was a newspaper of general circulation; but to overcome this finding, appellant introduced what are claimed to be the files of that paper, from which it appeared that no other notice was given of application for leave to sell this land than that filed in the case, describing the quarter as being on section 32; and the present publisher of the paper was called, and testified that the volume offered was turned over to him, when he purchased the printing office, as the bound volume of the files of the “Ottawa Republican” for the years 1854 and 1855, and from which the files of the papers were read.

The question whether the solemn finding of the court, as to its jurisdiction, can be contradicted by evidence outside of the record, is presented in this case, and upon its determination depends the rights of the parties. In cases of summons and personal service, and where the proof of service can only be shown by the return of the officer, it has been held that, if the return contradicted the finding of the court, it would overcome the finding, and prove the want of jurisdiction, even in a collateral proceeding. In the case of Botsford v. O'Conner, 57 Ill. 72, it was held that, where the service is by summons, and it is insufficient to confer jurisdiction, parol evidence can not be heard to prove or aid it, but that it is otherwise where the service is by publication, when parol evidence may be received to prove that the notice was published. Where service is by summons, the only mode the court has to determine whether it has acquired jurisdiction, is by the return of the officer on the summons. The court can not hear parol evidence proving admissions of the defendant that he was served, but must be governed by the return of the officer. If the return is defective, when the service is good, the court should require the officer to amend his return so as to conform to the facts. If the service itself was defective, so that the return can not be amended and state the truth, the court should refuse to proceed in the case until there is new and proper service, or until an appearance is entered, giving the court jurisdiction of the person of the defendant.

The statute has, however, provided that, where the service is by publication, a proper certificate of the printer shall be sufficient evidence of service to confer jurisdiction of the person of the defendant and of the subject matter of the suit; but the statute has not declared that this shall be the only means of proving the publication. If such a publication were properly made, the plaintiff might, no doubt, produce the requisite number of newspapers containing the notice, and prove by parol that they were a part of the weekly issue of the paper; were duly published and distributed, and that the entire issue and circulation for each week contained the same notice. This would have been the common law mode of making the proofs, had...