Correll v. Greider

• Citation: 92 N.E. 266,245 Ill. 378
• Parties: CORRELL v. GREIDER.
• Decision Date: 29 June 1910
• Court: Supreme Court of Illinois

245 Ill. 378

92 N.E. 266

CORRELL

v.GREIDER.

Supreme Court of Illinois.

June 29, 1910.

Error to Circuit Court, Sangamon County; James A. Creighton, Judge.

Action by Levi S. Correll against Hugh M. Greider. Decree for plaintiff, and defendant brings error. Reversed and remanded.

Thomas L. Jarrett, for plaintiff in error.

T. J. Condon and William L. Patton, for defendant in error.

VICKERS, C. J.

This is a writ of error sued out by Hugh M. Greider to obtain a review of a decree of the Sangamon county circuit court reforming a deed executed by Sam D. Scholes to Annie E. Correll. The deed conveyed the premises to Annie E. Correll in fee simple. After her death, Levi S. Correll filed a bill to correct said deed, alleging that the scrivener had made a mistake in writing the deed; that it was the intention of all the parties concerned that the deed should convey to Annie E. Correll a conditional fee, with a right of remainder in fee to Levi S. Correll in case he survived his wife. Annie E. Correll died testate, and devised the lands in controversy by her last will. The devisees and heirs at law of Annie E. Correll were made parties defendant to said bill. All of the defendants except Hugh M. Greider and Cornelius Correll, two of the heirs of Annie E. Correll, were served personally. Hugh M. Greider and Cornelius Correll being nonresidents of the state, an attempt was made to obtain jurisdiction of them by publication. The following affidavit was filed under section 12 of the chancery act (Hurd's Rev. St. 1909, c. 22): ‘Levi S. Correll, being first duly sworn, under oath states that he is the complainant in the above-entitled cause, and that the defendant Hugh Greider, if living, is a nonresident of the state of Illinois; that he has made diligent inquiry to ascertain his residence, as also the names and addresses of his bodily heirs, if any, but without success. The last known residence of said Hugh Greider was Wedderford, in the state of Texas. The affiant further states that the defendant Cornelius Correll is also a nonresident of the state of Illinois, and that his residence is in the town of Sheldon, in the state of Missouri.’ Under this affidavit publication was had, and a notice addressed to Hugh M. Greider, Wedderford, Tex., was mailed. There is no evidence in the record showing that Hugh M. Greider received any actual notice of the pendency of the suit. A decree by default was entered in accordance with the prayer of the bill, and this writ of error is sued out to reverse that decree.

The rule is too well established to require the citation of authorities that a party claiming the benefits of a decree upon constructive service must show a strict compliance with every requirement of the statute. Nothing less will invest the court with jurisdiction or give validity to the decree when the same is called into question in a direct proceeding. Boyland v. Boyland, 18 Ill. 551. The affidavit upon which service by publication is had under section 12 of the chancery act is jurisdictional, and the statute must be strictly complied with. Anderson v. Anderson, 229 Ill. 538, 82 N. E. 311. The affidavit filed in this case does not comply with the statute, either literaly or substantially. After stating that Hugh M. Greider, if living, is a nonresident of the state of Illinois, the affidavit recites ‘that he [affiant] has made diligent inquiry to ascertain his residence, as also the names and addresses of his bodily heirs, if any, but without success.’ The words ‘without success' are not...