Clark v. Thompson

• Decision Date: 31 January 1868
• Citation: 95 Am.Dec. 457,1868 WL 4923,47 Ill. 25
• Parties: SARAH JANE CLARKv.MILES THOMPSON.
• Court: Illinois Supreme Court

47 Ill. 25

1868 WL 4923 (Ill.)

95 Am.Dec. 457

SARAH JANE CLARK

v.MILES THOMPSON.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Randolph county; the Hon. SILAS L. BRYAN, Judge, presiding.

The opinion states the case.

Mr. THOMAS G. ALLEN, for the appellant.

Mr. W. H. BARNUM, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought by Sarah Jane Clark, against Miles Thompson, in the Randolph Circuit Court. On the trial in the court below, the jury found a verdict in favor of defendant, upon which a judgment was rendered in his favor. To reverse that judgment, an appeal is prosecuted to this court, and various errors have been assigned on the record.

It is first insisted, that the circuit court rendering the order licensing the administrator to sell the land in controversy, to pay the debts of Cuthbert S. Crane, deceased, did not have jurisdiction of the persons of the heirs. It appears that a summons issued on the 23d day of April, 1849, to the widow and heirs, requiring them to appear on the fourth Monday of the same month, to answer the petition; on the same day McConnell and wife acknowledged service, and he also acknowledged service for the minor heirs of Crane, as their guardian. The record discloses no other notice or service, nor does the decree find that a different service was had. A guardian ad litem was appointed, and answered on the next day after the summons was issued, stating that he knows of no reason why enough of the land should not be sold to pay the debts. The decree finds, that as the defendants urge nothing against the sale, and as the guardian ad litem admitted debts existed, the lands should be sold for their payment.

The statute has provided but two modes by which the court can acquire jurisdiction of the persons of heirs in this proceeding. One is by the publication of a notice for the prescribed period, and the other, by serving a notice with a copy of the petition and account of administration, upon the heirs thirty days before filing the petition. In this case, neither of these modes appears to have been adopted. In Herdman v. Short, 18 Ill. 59, and Johnson v. Johnson, 30 Ill., 215, it was held that a summons with service was insufficient to confer jurisdiction in this proceeding. In this case, as to the minors, there is no pretense of service, nor had the guardian power to admit service for them.

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. It is insisted, that by the appointment of a guardian ad litem and his answer, the minors were before the court, and there was no want of jurisdiction. It is urged that, inasmuch as the 47th section of the chapter entitled chancery, provides that the court may appoint a guardian ad litem for minor defendants, whether they have been served or not, the appointment of a guardian ad litem in this case gave the court jurisdiction, although the minors were not brought into court in the usual mode. Whatever might be the effect of such an appointment in a...