Bellinger v. Barnes
| Decision Date | 17 April 1906 |
| Citation | 221 Ill. 240,77 N.E. 421 |
| Parties | BELLINGER et al. v. BARNES et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, McLean County; C. D. Myers, Judge.
Bill by Lena Bellinger and others against Ella Barnes and others to contest the will of Elizabeth Timmerman, deceased. The bill was dismissed, and Lena Bellinger and another bring error. Order taking the cause under advisement set aside.
D. D. Donahue and Ed Pierce, for plaintiffs in error.
Rowell & Lindley, Welty, Sterling & Whitmore, and Thomas W. Tipton, for defendants in error.
Lena Bellinger, David Timmerman, Morgan Timmerman, and Amy Snell filed their bill in the circuit court of McLean county against Ella Barnes and others to contest the will of Elizabeth Timmerman, deceased. There was no trial on the merits, but such proceedings were had that the court on April 29, 1903, entered a decree dismissing the bill as to David Timmerman, Morgan Timmerman, and Amy Snell, and on July 9, 1903, entered a decree dismissing the bill as to Lena Bellinger.
David Timmerman and Lena Bellinger sued out this writ of error to review those decrees, and used the names of their co-complainants as coplaintiffs in error. Process issued from this court on February 9, 1905, for the defendants in error, and was returned March 30, 1905, served as to a part of those against whom it ran and ‘not found’ as to the others. On June 17, 1905, affidavit of the nonresidence of such others and of Morgan Timmerman and Amy Snell was filed, and notice by publication was given to the defendants in error ‘not found,’ but no notice was given to the two complainants below, who did not join in suing out this writ, and those two complainants have not appeared and assigned error. They have not been summoned, there has been no judgment of severance as to them, and they are not in court by entry of appearance or otherwise. Lena Bellinger and David Timmerman joined in assigning errors, questioning, among other things, the action of the circuit court in dismissing the bill as to their two co-complainants, and the cause was taken under advisement by this court at the October term, 1905.
Defendants in error seek by their brief and argument to have the writ dismissed on account of the failure of plaintiffs in error to obtain summons for and judgment of severance as to Morgan Timmerman and Amy Snell.
It was proper, in the first instance, for the plaintiffs in error to join the names of all the complainants in the...
To continue reading
Request your trial
-
In re Water Rights In Big Laramie River
...(Johnson v. Irr. Co., 13 Wyo. 208); other illustrations may be found in (Canaday v. Davis, 79 Kan. 816, 101 P. 626; Bellinger v. Barnes, 221 Ill. 240, 77 N.E. 421; Dr. Koch Tea Co. v. Davis, 145 P. 337; Bowen Bowen, 36 O. S. 312, 314; McLaren v. Meyers, 87 O. S. 88, 95.) Alias writs are mer......
-
Stephens v. Collison
...Coal & Coke Co., 220 Ill. 42, 77 N. E. 122;Wuerzburger v. Wuerzburger, 221 Ill. 277, 77 N. E. 419,5 Ann. Cas. 628;Bellinger v. Barnes, 221 Ill. 240, 77 N. E. 421. The parties not assigning error are regarded as consenting to the judgment or decree, and if their interests are separate from t......
-
Mitchell v. Banking Corporation of Montana
... ... and thus have effected a severance of the separate causes of ... action theretofore united. Bellinger v. Barnes, 221 ... Ill. 240, 77 N.E. 421. See, also, Jenkins v ... Carroll, 42 Mont. 302, 112 P. 1064; Great Falls Bank ... v. Young, 67 Mont ... ...
-
Wuerzburger v. Wuerzburger
... ... Dismissed.[221 Ill. 278]L. F. Meek and Barnes & Magoon (L. Walter MacNeil, of counsel), for plaintiffs in error.Thomas Kennedy and William A. Potts, for defendants in error.[221 Ill. 277]This was ... ...