Bertrand v. Douglas S. Taylor.

• Decision Date: 30 September 1877
• Citation: 1877 WL 9846,87 Ill. 235
• Parties: TO-GAH BERTRANDv.DOUGLAS S. TAYLOR.
• Court: Illinois Supreme Court

87 Ill. 235

1877 WL 9846 (Ill.)

TO-GAH BERTRAND

v.DOUGLAS S. TAYLOR.

Supreme Court of Illinois.

September Term, 1877.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Mr. E. S. SMITH, and Mr. ROBERT L. LYONS, for the plaintiff in error.

Mr. EDWARD ROBY, for the defendant in error.

Mr. JUSTICE DICKEYdelivered the opinion of the Court:

This was a proceeding under the Burnt Record act of April 9, 1872, instituted by defendant in error, under the 16th section of that statute, to establish and confirm his title to certain land in the county of Cook.The petition was filed July 7, 1873, and a decree, pro confesso, was entered Nov. 13, 1873.The transcript before us contains no order opening or setting aside this decree, but does show, that on the 19th of September, 1874, an order was made setting aside “the order heretofore entered in this cause vacating or opening the said former decree entered November 3, 1873,” and restoring said decree, and adding certain recitals and findings of fact not stated in the former decree.

On the 13th of October, 1876, plaintiff in error filed her petition, asserting that she is the true owner of the land in question, and asking that said decree be opened, and that she be permitted to answer the original petition of defendant in error.The petition of plaintiff in error states “ inter alia ” that she was formerly known by the name of To-gah Kankee, and that “she afterwards married Joseph Bertrand, who is now her husband;” that she had no notice, by summons or otherwise, of the proceeding of defendant in error until shortly before filing her petition, and that she is, and for many years has been, a resident of the State of Michigan.

This petition was verified by affidavit, and the court, upon consideration, refused to open the decree of defendant in error, and refused to permit plaintiff in error to answer the original petition of defendant in error.

The transcript of the record, as it is said, is brought here by writ of error, sued out on the 10th day of November, 1876.

It is insisted, that the plaintiff in error had a right, under that statute, to have the decree opened, and to answer, at any time within three years after the entry of the decree, and that this decree must be treated, on this record, as entered on the 19th of September, 1874.

We can not sanction either of these positions.The transcript shows a complete decree, entered November 3, 1873, and shows no order of the court vacating or opening this decree.The mere allusion to some such order in the recital of record, under date of September 19, 1874, is not sufficient for that purpose.We are driven to one of two conclusions: either there never was any order made vacating that decree of November 3, 1873, or, the transcript before us is not a full transcript of the record in the case.If no such order was ever made, the decree must stand as of the date of November 3, 1873, although there may be an erroneous recital entered of record alluding to a supposed order of that kind.If the record is incomplete, it furnishes no sufficient ground for this court to...