Botsford v. O'conner

• Decision Date: 30 September 1870
• Parties: JABEZ K. BOTSFORDv.CHARLES R. O'CONNER et al.
• Court: Illinois Supreme Court

57 Ill. 72

1870 WL 6583 (Ill.)

JABEZ K. BOTSFORD

v.CHARLES R. O'CONNER et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The facts sufficiently appear in the opinion.

Mr. GRANT GOODRICH, for the appellant.

Messrs. ROSENTHAL & PENCE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The undisputed facts in this case are, that Charles O'Conner, being seized in fee of the premises in controversy, died on the 1st of March, 1858, intestate, leaving, surviving him, a widow and two minor children. His widow was then enceinte, and was afterward delivered of a female child, which was named Ann O'Conner, and who, not then being born, was not made a party with the other heirs to a proceeding subsequently had for the sale of the real estate of intestate, for the payment of his debts. On the 4th day of March, 1858, Ann O'Conner, the widow, was appointed administratrix of the estate, and she, at the same time, became guardian of Charles R. and Mary O'Conner. On the 26th of August, 1858, and before the birth of the posthumous child, the administratrix filed a petition in the county court of Cook county, praying the sale of the lands of which intestate died seized, to pay the debts which had been proved and allowed against his estate, in which proceeding Charles R. and Mary, together with two tenants, who were in possession of a portion of the lands, were made defendants. A summons was issued, upon which the sheriff indorsed this return: “Served this writ on the within named Mary O'Conner and Charles O'Conner, the others not found in my county, the 29th day of August, 1858.”

On a hearing, a decree was rendered, ordering the sale of these premises, with others, on the 16th of September, 1858, by which decree the court found that the two minor children, Mary and Charles R., were all the legal heirs which intestate left surviving him, and ordered the administratrix to sell all the right, title and interest, which was of intestate at his death, and which descended to Charles R. and Mary O'Conner. The decree required a report of proceedings thereunder before executing deeds after the sale.

There is nothing to show that Ann O'Conner, the posthumous child, was in any manner referred to, or made a party to that proceeding. A supplemental proceeding was had in the case at the next March term of the court, but the posthumous child was not then made a party. On the 1st day of June, 1859, and after the birth of this child, the property was advertised for sale, on the 18th day of July, 1859, when a portion of the property named in the decree was sold, but the property in dispute was not sold until the 25th of the following October, the sale having been several times adjourned. The sale was reported to and approved by the court. A deed was, thereupon, made to the purchaser, from whom appellant, through mesne conveyances, derives title. Appellees instituted a suit in ejectment in the Superior Court of Chicago, against appellant for the premises. A trial was had, resulting in favor of appellees, and the record is brought to this court by appeal, and various errors are assigned.

The question, whether the posthumous child took, by descent, as did the brother and sister, or only as heir to the property which might remain after payment of all debts of intestate, we regard as fully settled by the cases of Detrick v. Migatt, 19 Ill. 146, and McConnel v. Smith, 39 Ill. 279. In those cases, which were the same, differently presented, it was held, that under our Statute of Descents, a posthumous child inherited of an intestate father precisely as did those who were born in his life time; that on the death of the father, the title to his real estate vested in the posthumous child, although in ventre sa mere, precisely as though such child had been previously born. And those cases further hold, that such a child can not be deprived of its rights to lands so inherited, by a proceeding in court, unless made a party. Nor do we conceive that the form of action, whether in chancery, at law, or under the statute, can, in this respect, make the slightest difference.

It is a principle that lies at the foundation of all jurisprudence in civilized countries, that a person must have an opportunity of being heard, before a court can deprive such person of his rights. To proceed upon any other rule, would shock the sense of justice entertained by mankind, would work great wrong and injustice, and render the administration of justice a mere form. Until a person is made a party to a suit, and is afforded a reasonable opportunity of being heard in defense of his rights, a court has no power to divest him of a vested right.

This is coeval with the common law, and lies at the very foundation of our jurisprudence, whether chancery, common law or statutory, and applies equally to superior as well as inferior jurisdictions. This child was born about a year before the sale was made, and every opportunity was afforded for making it a party, and thus cutting off its rights to this inheritance, but, from inattention or other cause, it was not done. Not having been made a party to the bill, the rights of this posthumous child were not affected by the decree, the sale or the administratrix's deed, and it had a right, under the evidence in the record, to recover. Was the service on Charles R. and Mary sufficient to give the court jurisdiction of their persons, so as to render a decree under which they could be divested of their title to this property? The return is, “served this writ on the within named Mary O'Conner and Charles R. O'Conner, the others not found in my county, the 26th day of August, 1858.” This return fails to state how the writ was served; whether by copy, by reading, by posting notice or otherwise, does not appear.

To give the court jurisdiction of the persons of defendants, a legal service upon them is necessary. The mode of service of summons, when not otherwise provided by statute, is by reading the same to the defendants, and to each of them, and the return should show the time when, upon whom, and the manner in which, service was made, and unless it thus appeared, the court failed to acquire jurisdiction. Ball v. Shattuck, 16 Ill. 299. And in the case of Belingall v. Gear, 3 Scam. 575, it was held that it must affirmatively appear, from the officer's return, that there was a legal service, and that it was such service as gave the court jurisdiction over the person of defendant.

But appellant contends that the decree cures the defective service; that it recites that it was shown to the court that due service of process was had upon the two minor defendants, and that the decree can not be contradicted by the summons and return. It is undeniably true, that this, like any other finding of the court, can never be contradicted in a collateral proceeding, by parol, or other evidence outside of the record in that proceeding. It, however, may by other portions of the same record. But such a finding is conclusive, in a collateral proceeding, until thus rebutted. In the case of Clark v. Thompson, 47 Ill. 25, we said: “It is, however, insisted that when a court of general jurisdiction has proceeded to adjudicate a cause, we must presume that the court had evidence that there was such service, or appearance, as confers jurisdiction of the person; that the question of jurisdiction is primary, and must first be determined. This is no doubt true, in all collateral proceedings, but is liable to be rebutted. If the record shows service which is insufficient, and the record fails to show that the court found that it had jurisdiction, then the presumption is rebutted, and it must be held that the court acted upon the insufficient service. When a summons and return appear in the record, and there is no finding of the court from which it may be inferred that there was other service, or appearance, it will be presumed that the court acted upon the service which appears in the record. In this case, the summons and acknowledgment of service, were not sufficient to confer jurisdiction over the minor defendants, and unless jurisdiction was otherwise obtained, the decree, as to them, was a nullity, and may be attacked in a collateral proceeding.”

This is directly to the point, and fully embraces this question, and must be held to govern it.

The return of service being insufficient, we must hold that the court below had no jurisdiction of the persons of the minor heirs, against whom this summons was issued and the decree rendered.

Where the service is by summons, verbal testimony can not be received, to prove or aid it. That can be shown alone by the officer's return. It is no doubt otherwise where service is by publication, when parol evidence may be received to prove that the notice was published.

The service appearing in the record was defective in not showing the manner in which it was made, and as parol evidence could not be rightfully heard to aid it, we can not presume the court acted on other evidence than the return. It therefore rebuts the finding that there was service. Appellant insists that the court below did not, and could not, acquire jurisdiction of the case, because only a part of the heirs were made parties. We do not understand the statute as requiring all persons in interest to be made parties, to confer jurisdiction of the subject matter upon the court. The court acquires that jurisdiction, from the death of the party seized of real estate, the grant of letters testamentary or of administration, and his indebtedness, and filing the petition showing these facts. These are facts which confer jurisdiction upon the court, as to the subject matter. The necessity of making all persons in interest parties defendant, is to adjust their rights. Although clearly erroneous, the court would, in a proper case, calling for the sale of...