Donlin v. Hettinger

• Decision Date: 30 September 1870
• Citation: 57 Ill. 348,1870 WL 6639
• Parties: JOHN DONLINv.FRANCIS HETTINGER et al.
• Court: Illinois Supreme Court

57 Ill. 348

1870 WL 6639 (Ill.)

JOHN DONLIN

v.FRANCIS HETTINGER et al.

Supreme Court of Illinois.

September Term, 1870.

WRIT OF ERROR to the Superior Court of Chicago.

This was a suit in chancery, instituted by Francis Hettinger and George Oertel, against John Donlin and Catharine Fitzgerald, by which it was sought to enjoin an action of ejectment brought by Donlin and others, as the heirs of John Donlin, deceased, against the complainants.

The land in controversy had been sold under an order of the Circuit Court of Cook county, upon the application of the administrator of John Donlin, deceased, to pay the debts of the estate.

The defendants in the action of ejectment deduced title from that sale. The question presented is, whether it appeared from the proceedings on the application of the administrator of John Donlin, deceased, for an order to sell the land, that the court had obtained jurisdiction of the persons of the heirs.

Messrs. ROSENTHAL & PENCE, for the plaintiff in error.

Mr. H. A. WHITE, for the defendants in error.

MR. JUSTICE BREESE delivered the opinion of the Court:

The only question made upon this record important to be considered is, the validity of the decree of April 23, 1849. The defendants in error, who were complainants below, claim nothing under the proceedings in 1846. Their counsel say the bill does not base any rights upon the decree of July, 1846, but only upon that of 1849; and conceding that the court had not then acquired jurisdiction over the persons of the defendants, it had over the subject matter by filing the petition, and if the order to sell was improvidently granted for that reason, then the leave to amend the petition and setting aside the order (of sale) was proper for the court to make. He also says that it is not filing proof of service of notice in any form that calls the power of the court into action--it is the filing the petition; and he further says, in this case it is of little consequence what the findings of the first decree were, as on amending the petition asking for the sale of other lands required new notice to be given, and then the case was continued, affording an opportunity to give the notice, and then the final order contains no recitals of proof of service of any kind. He insists, as there are no recitals of service in this decree, parties have the right to presume that due notice was given or the court would not have acted, otherwise the court must now announce the rule that unless the court recites it had jurisdiction of the person they will hold that it had not jurisdiction, and thus reduce the superior courts of the State to the condition of inferior courts at common law, who are always obliged to show jurisdiction of the person. He further says, that after the amendment of the petition was allowed, the record was no longer in the condition it was in when that order was made, and if the court intended to act only upon the notice that had been made prior to this amendment, an order would have been at once entered upon the amended petition; but instead of so doing, the cause was continued, and the only reason for that was, that notice might be given of the application, and as time enough elapsed within which the notice could have been given, it will be presumed it was given. Citing Miller v. Handy, 40 Ill. 448.

From this we understand the counsel to hold, that in a statutory proceeding like this, committed to a court of general jurisdiction, if the statute requires notice to be given, it is not necessary the proceedings should show it, as notice will be presumed.

We do not think the case he has cited, Miller v. Handy, supra, will sustain him in this proposition.

That was an action of ejectment, the defendant claiming under a judgment on scire facias to foreclose a mortgage. The validity of the judgment was attacked on the ground that it did not appear that two writs of sci. fa. had been returned nihil.

The court found that two writs of sci. fa. had been returned nihil. This, we said, was strong presumptive evidence of that fact, to be rebutted only by the clearest proof. The appellee insisted that the fact that the first writ, issued to the August term, being void, the return on it could not be regarded and was not to be counted as a return of one “ nihil.” To this we assented, but said the terms of court in Cook county were so arranged by statute, that there was time and opportunity to issue two writs of sci. fa. and have them returned, and as the court had found there were two returns of “ nihil,” we would, in the absence of one of the writs from the files, hold the finding evidence of service, unless overcome by something appearing in the record.

We further said, the fact of service of process lay at the threshold of the case, and of which the court is to be informed and to pronounce with the same fidelity as upon any other fact in the cause, and there was nothing in the case to show that the finding of the court was not in strict accordance with the fact.

If in this case the decree of 1849, under which defendants claim, had recited the fact that due notice to the heirs had been given, it would have been like the case cited, and in this collateral action would have been sufficient.

The doctrine in 2 Howard, 319, ...