Franz v. Killian Winne.

• Decision Date: 28 February 1880
• Parties: EHRHARD D. FRANZ ET AL.v.KILLIAN WINNE.
• Court: United States Appellate Court of Illinois

6 Ill.App. 82

6 Bradw. 82

EHRHARD D. FRANZ ET AL.

v.KILLIAN WINNE.

Appellate Court of Illinois, Fourth District.

February Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Randolph county; the Hon. AMOS WATTS, Judge, presiding. Opinion filed April 2, 1880.

Mr. SILAS L. BRYAN, Mr. A. G. GORDON and Messrs. PATTON & LANPHIER, for appellants; that the default should have been set aside, cited Rev. Stat. 1874, Chap. 22, § 17; Mason v. McNamara, 57 Ill. 274; Union Hide & Leather Co. v. Woodley, 75 Ill. 435; Moore v. Bracken, 27 Ill. 23.

This court may review the action of the court below in refusing the motion: Bowman v. Bowman, 64 Ill. 75; Brown v. Brown, 59 Ill. 315.

As to setting aside default where there is constructive service: Lyon v. Robbins, 46 Ill. 276; Hogden v. Guttery, 58 Ill. 431.

The purchaser of a mortgage takes it subject, in equity, to all infirmities to which it is liable in the hands of the assignor: Olds v. Cummings, 31 Ill. 189; Fortier v. Darst, 31 Ill. 212; Sumner v. Waugh, 56 Ill. 531.

Mr. J. BLACKBURN JONES, for appellee; against the motion to set aside the default, cited Fergus v. Garden City Mfg. Co. 71 Ill. 51; Peoria & R. I. R. R. Co. v. Mitchell, 74 Ill. 394; Union Hide Leather Co. v. Woodley, 75 Ill. 435; Constantine v. Wells, 83 Ill. 192; Edwards v. McKay, 73 Ill. 570.

The discretion exercised by the court below cannot be inquired into by this court: Powell v. Clement, 78. Ill. 20; Garner v. Crenshaw, 1 Scam. 143; Wallace v. Jerome, 1 Scam. 524; Woodruff v. Tyler, 5 Gilm. 457; Cox v. Brackett, 41 Ill. 222; Mitchell v. Chicago, 40 Ill. 174.

CASEY, J.

This was a bill in chancery to foreclose a mortgage filed by appellee in the Randolph Circuit Court, on the fourth day of December, A. D. 1878, against appellants and others. The first error assigned, is that the court erred in not giving defendant further time to answer. The fourth error assigned, is that the court erred in not setting aside the default. A disposal of these errors disposes of the whole case. To properly understand the points made, it will be necessary to state the record in detail, to a considerable extent. The bill alleges that Emil Berger, on the 6th of May, A. D. 1875, was indebted to one William Gorger in the sum of $12,000; that on the same day he made and delivered to the said Gorger two promisory notes, for the sum of $6,000 each, payable in three and five years, respectively, with interest at the rate of eight per cent. per annum; that on the same day the said Berger and Christine Berger, his wife, executed, acknowledged and delivered to the said Gorger a deed and mortgage on a large amount of real estate therein described; that the mortgage was recorded on the first day of June, A. D. 1875; that on the 10th of October, A. D. 1875, the said Gorger sold and transferred the notes and mortgage to one J. W. Kennedy; that on the 5th day of January, A. D. 1876, the said Kennedy sold and transferred the said notes and mortgage to the complainant, and that the complainant was the owner of both of said notes and mortgage; that one of said notes is long since due, and that by the terms and conditions of the mortgage the same may be foreclosed; and avers that the mortgage and first of said notes is now brought into court. Then follows the prayer of the bill; that Emil Berger and his wife Christine Berger be made party defendants, and required to answer, etc. Their answer under oath is not waived. After this conclusion as to the Bergers, the bill shows that Ehrhard D. Franz, Herman Fay, William Dutzell (appellants) and one Nasse, “pretend to have some right or claim upon a part of said property described in the said mortgage, but just how much or what part of said property complainant is not advised; that the said Nasse by virtue of a pretended deed of trust, had sold all or a part of said real estate; that Ehrhard D. Franz was the purchaser, and that said Nasse as trustee had by deed conveyed said premises to the said Franz, and that the said Franz through his agent, Albert Wilson, is about to rent or sell said property, or a part thereof.”

“That A. G. Gordon is the Attorney of the said Franz. That if the said parties have any claim to said property, it is subject to the claim and lien of complainant's mortgage and subsequent thereto,” and then follows this statement. “Your complainant hereby makes the said Ehrhard D. Franz, William Dutzel, Albert Wilson and A. G. Gordon, defendants in this part of the bill.” And also an additional prayer, “that the said trustee's deed may be set aside and that the said Ehrhard D. Franz and Albert Wilson, be restrained from taking possession, renting, selling or interfering with said property,” etc. etc. This bill is signed by the complainant and sworn to by George T. Rim. Then follows a statement that one Herman Fay and his wife had by a deed of trust, conveyed part of the lands, “but just what portion complainant is not advised” to one ““““_____Nasse as trustee; that the said_____Nasse as trustee on the 15th day of Oct. 1878, will sell some portion of the lands,” as is alleged ““““described in exhibit B, which is herewith filed and made part of this bill.” There is no such exhibit B in the record. The bill then alleges that “if the said Ehrhard D. Franz, William Dutzel and Herman Fay have any claim at all on said property it is subject to the claim of your complainant,” and that a sale of said premises “would cloud and impair the value of complainant's security,” and that “as they now are, complainant can use said notes and mortgage as collateral security and then borrow money whenever his business requires it.” Following is an additional prayer to the bill, “that Ehrhardt D. Franz and William Dutzel may also be made party defendants,” etc.; their answer under oath being waived, and also praying for an injunction restraining the said Ehrhardt D. Franz and William Dutzel from disposing of any of said real estate. Then follows another prayer for an accounting and foreclosure, and that “the said injunction be made perpetual,” etc.

There is nothing in the record to show that the bill was amended. And the record is so carelessly prepared that it is difficult to understand. The clerk may not be advised as to his duties in the premises, and counsel for appellants should file a præcipe, directing the formation of the record. The præcipe becomes a part of the record. The abstract filed by appellant's counsel is not a compliance with the rule of the court. It is not an abstract, but an imperfect index. No objection was made to it by counsel for appellee, and in view of the importance of the case we conclude to examine the record. There was service by summons on all the defendants except Ehrhardt D. Franz and Herman Fay. A writ of injunction was issued on the 4th of December, 1878, and served on all the defendants, except Franz and Fay.

At the March term of the Circuit Court, to wit: on the 18th day of March, A. D. 1879, the record shows proof of service; “service by publication, as to Emil Berger, Christine Berger, Ehrhard D. Franz, Herman Fay, William Dutzell, August Nasse and Albert Wilson, and the appearance of E. D. Franz is entered by A. G. Gordon, his attorney, and ruled to answer by first Thursday; and now on Thursday, March 20th, default is entered for want of answer as to all defendants; and now on this same day motion is made to set aside the default as to all the defendants except Emil Berger and Christine Berger; which motion is refused, and defendants except thereto, at the time; and it appearing to the court here from the writ issued therein to the Sheriff of Randolph county, and the return thereon, that the defendants, Emil Berger, and Christine Berger, had been regularly served with process herein at least ten days prior to the first day of this term of court, and it further appearing, that the said defendants, Ehrhard D. Franz, Herman Fay, William Dutzel, August Nasse and Albert D. Wilson, had entered their appearance in writing in said cause on the 4th day of January, A. D. 1879.” Then follows a decree of foreclosure on one of the notes; one only being introduced in evidence. The motion to set aside the default is accompanied by the answer, which is material, and shows that the notes and mortgage referred to in complainant's bill have, by the United States Circuit Court for the Southern District of Illinois, been declared fraudulent and void; that...