Figge v. Rowlen

• Decision Date: 21 April 1900
• Citation: 57 N.E. 195,185 Ill. 234
• Parties: FIGGE v. ROWLEN et al.
• Court: Illinois Supreme Court

185 Ill. 234

57 N.E. 195

FIGGE

v.ROWLEN et al.

Supreme Court of Illinois.

April 21, 1900.

Appeal from appellate court, Fourth district.

Suit by C. Figge against Frank S. Rowlen and others to foreclose a mortgage. From an order of the appellate court (84 Ill. App. 238) affirming a judgment in favor of defendants, plaintiff appeals. Affirmed.

Magruder, J., dissenting.

Choisser, Whitley & Choisser, for appellant.

R. S. Marsh, for appellee M. Fenwick.

BOGGS, J.

On the hearing of the issues formed under a bill in chancery filed by the appellant against appellees, to foreclose a mortgage on certain real estate in Saline county, the appellees, over the objection of the appellant, were permitted to introduce in evidence a decree entered in the circuit court of Saline county in a certain proceeding in chancery wherein the appellant was defendant and the grantor of appellee Fenwick was complainant, setting aside and declaring null and void the said mortgage sought by the appellant to be foreclosed herein, and canceling the same as a cloud upon the true title to said real estate. If the ruling of the court as to the admissibility of such decree in evidence was correct, it is conceded the judgment of the appellate court here appealed from, affirming the decree entered by the circuit court dismissing the appellant's bill for foreclosure, should be affirmed by this court.

The grounds of objection to the admissibility of the decree in evidence are that the court which rendered it did not have jurisdiction of the subject-matter of the proceeding or of the person of the defendant thereto. Jurisdiction of the person of the defendant to the proceeding was assumed on the theory the defendant was a nonresident of the state of Illinois, and had been duly notified by publication, as required by the statute in such instances. The decree recited it appeared ‘to the court, from the affidavit on file, that said defendant is not a resident of the state of Illinois, and that his place of residence is not known, and on due inquiry cannot be found.’ The appellant offered in evidence the files in the cause wherein the decree in question was rendered, including an instrument filed by the complainant in the cause as an affidavit of the nonresidence of the defendant therein, the appellant here. As to this instrument counsel for appellant in their brief say: ‘The affidavit of nonresidence is wholly void. It was sworn to before a notary public in Allen county, Ohio, and the notary does not state in his certificate that he is authorized, under the laws of the state of Ohio, to administer oaths.’ The power to administer an oath is not incidental to the office of notary public. If possessed by a notary, it is by force of the enactments of the state under which he holds his commission. Trevor v. Colgate, 181 Ill. 129, 54 N. E. 909. The enactments of a sister state may be proven by printed statute books purporting to be printed under the authority of such state (Rev. St. c. 51, § 10, entitled ‘Evidence and Depositions'); and the true meaning or construction of the statute of a foreign state, as declared by the courts of last resort of such state, may be proven by books of reports of decisions of such courts purporting to be published by authority (c. 51, § 12), or by the testimony of witnesses learned in the law of such state. Hoes v. Van Alstyne, 20 Ill. 202.

The court found and recited in its decree that it appeared from an affidavit on file the defendant was not a resident of the state, etc. An affidavit is a declaration in writing signed by an affiant, and sworn to by such affiant before some person who has lawful authority to administer oaths. Harris v. Lester, 80 Ill. 307. The finding of the court, therefore, involved consideration and judicial determination of the question of the authority of the notary public to administer the oath to the affiant. The decree was rendered by a court of general jurisdiction, and the attack upon it is made in a collateral proceeding. In such instances, in the absence of proof to the contrary, nothing is presumed to be outside the jurisdiction of the court which rendered the decree. Swearengen v. Gulick, 67 Ill. 208. Service by publication was relied on to acquire jurisdiction of the person of the defendant in that proceeding. In determining as to the existence of facts necessary to constitute service by publication, the court had lawful power to receive parol or documentary testimony. Botsford v. O'Conner, 57 Ill. 72;Barnett v. Wolf, 70 Ill. 76;Swift v. Yanaway, 153 Ill. 197, 38 N. E. 589;Bickerdike v. Allen, 157 Ill. 95, 41 N. E. 740,29 L. R. A. 782;Reedy v. Camfield, 159 Ill. 254, 42 N. E. 833. It is not necessary that, in answer to a collateral attack, testimony received for that purpose should be preserved in the record, for the reason that the legal presumptions arise in aid of the jurisdiction of the court that competent evidence was produced to warrant the finding that the instrument in question was an ‘affidavit,’ within the legal meaning of that word. Bickerdike v. Allen, supra; Reedy v. Camfield, supra. The rule to be deduced from the decisions of this court on the point is that the findings of a court of general jurisdiction as to jurisdictional facts necessary to constitute service by publication are conclusive as against collateral attack, unless such findings are irreconcilable with facts otherwise disclosed by the record, and that in aid of such findings, and in aid of any apparent conflict in the record, it will be presumed evidence was heard to support the findings in all cases where it is competent to receive evidence for that purpose.

The bill on which the decree here assailed is founded prayed a decree canceling the mortgage which appellant in this proceeding seeks to foreclose, as a cloud on the title of the complainant in the bill, but it was not averred in the bill that the complainant had possession of the land or that it was vacant and unimproved. We have repeatedly held that it is...