Dyer v. Last

• Decision Date: 30 September 1869
• Citation: 51 Ill. 179,1869 WL 5297
• Parties: ISAAC DYER, impleaded, etc.v.JOHN LAST, Administrator of the Estate of RICHARD F. FLINT.
• Court: Illinois Supreme Court

51 Ill. 179

1869 WL 5297 (Ill.)

ISAAC DYER, impleaded, etc.

v.JOHN LAST, Administrator of the Estate of RICHARD F. FLINT.

Supreme Court of Illinois.

September Term, 1869.

WRIT OF ERROR to the Circuit Court of Tazewell county; the Hon. JAMES HARRIOT, Judge, presiding.

The opinion states the case.

Messrs. ROBERTS & GREEN, for the plaintiff in error.

Mr. C. B. HOSMER, for the defendant in error. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in chancery, instituted in the court below in July, 1863, by the intestate of defendant in error, against plaintiff in error, who was then, and now is, a non-resident of this State. Publication was made under the 8th section of the chancery act. An affidavit of non-residence was filed in proper form, signed by complainant, to which was attached this jurat: “Sworn to and subscribed before me, this 24th day of July, 1863, Geo. H. Harlow, per A. P. Griswold, deputy.” A subpœna in chancery was issued on that date, returnable on the first day of the next September term, but was returned, not found. The term of the circuit court commenced on the first Monday in September following. From a certificate of publication which was filed, it appeared that the notice was published for four successive weeks, the first insertion being on the 28th day of August, and the last on the 18th day of September. Publication not having been made in time, the cause was continued on the 7th day of September, but on the 22d, the certificate of publication was filed, and also written authority to Cohrs to enter the appearance of Thompson was filed.

At the next February term the appearance of Thompson was entered, and the bill taken as confessed as to him. A rule was entered upon plaintiff in error for an answer, and a guardian ad litem was appointed for the minor defendant. The guardian ad litem answered, but plaintiff in error was defaulted, and the bill was taken as confessed as to him, and the cause was referred to the master to hear the proofs and report. This reference was set aside, and the bill was amended and Gill and Flint made parties, who entered their appearance, and the bill was taken as confessed as to them, and the case was again referred to the master at the same term.

On the coming in of the master's report, at that term, a hearing was had on the bill, answer, pro confesso orders, master's report and proofs, and the relief asked was granted. The record is brought to this court on error, and a reversal is asked on several grounds which we shall proceed to examine.

It is first urged, as a ground for reversal, that the affidavit upon which publication was ordered was insufficient, as it does not appear that it was sworn to before a proper, or, in fact, any officer authorized to administer the oath. The signature of Harlow is not followed by the word “clerk,” or any other means of designating the official capacity in which he acted by his deputy, nor does it appear of what office the latter was deputy, and hence it is claimed the affidavit is not sufficient to support the order. The case of McDermaid v. Russell, 41 Ill. 489, is referred to as supporting that position. In that case it was held, that where the affidavit upon which the notice of publication was based was not sworn to before any officer, no authority was conferred upon the court to make the order of publication. If, in the case at bar, the affidavit was not sworn to before any officer, then that case is conclusive of this.

The record, however, shows a person of the same name signed the notice for publication and the summons that was issued, as circuit clerk. Hence, we may reasonably and fairly conclude...