Gaff v. Spellmeyer
| Citation | 13 Ill.App. 294,13 Bradw. 294 |
| Parties | JAMES H. GAFFv.JOHN SPELLMEYER ET AL. |
| Decision Date | 31 May 1883 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Livingston county; the Hon. FRANKLIN BLADES, Judge, presiding. Opinion filed July 27, 1883.
Messrs. BAILEY & SEDGWICK and Mr. C. C. STRAWN, for appellant; as to the right to amend where there was service in fact, but the proof of service was irregular, cited Rickards v. Ladd, 4 Pacific C. L. J. 52; Kirkwood v. Reedy, 10 Kan. 453; Foreman v. Carter, 9 Kan. 674; Mason v. Messenger, 17 Ia. 261; Jeffreys v. Callis, 4 Dana, 465; Dunn v. Rodgers, 43 Ill. 262.
Mere lapse of time is no bar to an amendment upon satisfactory evidence where the rights of third persons will not be injuriously affected: Mahurin v. Brackett, 5 N. H. 9; Whittier v. Varney, 10 N. H. 291; Avery v. Bowman, 39 N. H. 393; Planter's Bank v. Walker, 3 S. & M. 409; Atkinson v. Rhea, 7 Humph. 59; Fowble v. Taylor, 4 Ohio, 45; Church v. English, 81 Ill. 442; Morris v. Trustees, 15 Ill. 266; Dunham v. S. Park Com'r's, 87 Ill. 188.
Amendments have been allowed after the making and filing of the original returns: Freeman on Executions, § 359; Woodward v. Harbin, 4 Ala. 534; Jarboe v. Hall, 37 Md. 345; Williams v. Houston, 71 N. C. 163; Muldrow v. Bates, 5 Mo. 214; Blaisdell v. Steamer, 19 Mo. 157; Irvin v. Scobee, 5 Lit. 70; Thatcher v. Miller, 11 Mass. 413; Rucker v. Harrison, 6 Munf. 181; Scott v. Trustees, 5 U. C. Pr. 228; Gilmon v. Stetson, 16 Me. 271; Scruggs v. Scruggs, 46 Mo. 271.
A return may be amended after the officer who made it has gone out of office: Adams v. Robinson, 1 Pick. 461; Johnson v. Donnell, 15 Ill. 97; Morris v. Trustees, 15 Ill. 266; Newton v. Prather, 1 Duo. 100; Hutchings v. Brown, 4 Har. & McH. 498; Miles v. Davis, 19 Mo. 408; Keen v. Briggs, 46 Me. 467; Palmer v. Thayer, 28 Conn. 237; Bean v. Thompson, 19 N. H. 290; Cushing v. Laird, 4 Ben. 70.
It is not necessary that the person who appeals should be actually a party to the record, provided he has an interest in the question which may be affected by the decree or order appealed from: Derrick v. Lamar Ins. Co. 74 Ill. 404; Burnham v. Lamar Ins. Co. 79 Ill. 162.
In making the amendment, the court may resort to any proof which is satisfactory: May v. The People, 92 Ill. 343.
Messrs. WALLACE & TERRY, for appellees; as to the right to amend when the length of time has been unreasonable, cited Coughran v. Gutcheus, 18 Ill. 390; O'Connor v. Wilson, 57 Ill. 226; Barnard v. Stevens, 2 Aikins (Vt.) 429.
The presumption is that the court acted upon the only summons and return found in the record unless the finding in the decree shows that there was other service: Clark v. Thompson, 47 Ill. 25; Botsford v. O'Connor, 57 Ill. 72.
The matter of the amendment can not be determined upon the evidence of witnesses: Coughran v. Gutcheus, 18 Ill. 390; Botsford v. O'Connor, 57 Ill. 72; O'Connor v. Wilson, 57 Ill. 226.
The return was absolutely void: Boyland v. Boyland, 18 Ill. 551; Cost v. Rose, 17 Ill. 276; Ball v. Shattuck, 16 Ill. 299.
On February 4, 1864, Wm. F. Spellmeyer, and Sarah, his wife, executed to Wm. D. Vansant a mortgage upon one hundred and twenty acres of land in Livingston county, to secure the payment of his note of even date for one hundred dollars at two years.
Not long afterward said Wm. F. Spellmeyer died, leaving said Sarah, his widow, and three minor children--John, Laura and Caroline. The widow married James Warner, who thereafter for some years lived with her and said children on the mortgaged premises, and cultivated them for the support of the family. In December, 1866, after said marriage, Vansant filed his bill to foreclose the mortgage, and process of summons thereon was sued out against said James and Sarah and the children above named, of which appellant, then sheriff of said county, made return as follows: “I have executed this writ by reading the same to and leaving a true copy of the same with James Warner and Sarah Warner, and leaving a true copy of the same at the regular place of abode for each of the within named, John Spellmeyer, Laura Spellmeyer and Caroline Spellmeyer, with a white person over ten years of age, and explaining to him the contents of the same, this 22d day of December, 1866.” This was defective in substance as to the infant defendants, in that it omitted to state the name of the white person referred to and that he was ““of the family” of said defendants. Such service as was here described would not give the court jurisdiction of their persons. Montgomery v. Brown, 2 Gilm. 581; Boyland v. Boyland, 18 Ill. 551; Fischer v. Fischer, 54 Ill. 233.
Nevertheless a guardian ad litem was appointed, who answered for them, and such proceedings were had that a decree of foreclosure and sale was entered Jan. 30, 1867, under which the premises were sold to F. Plumb, who assigned his certificate of purchase to defendant, to whom in due time the master executed his deed. Oct. 9, 1878, she deeded to Lawrence and Bourland; after which in succession, Lawrence deeded to Cook, and Bourland and Cook, by warranty deed of Nov. 9, 1880, forty acres of said land to Francis Kennedy, and by like deed of May 18, 1881, the remaining eighty to A. C. Fosdick.
Appellant's attention having been called to the defects of his return, he gave notice to said John, Laura and Caroline Spellmeyer, respectively, of his intended motion for leave to amend it according to the fact, by inserting the name of James Warner as the person with whom the copies were left for them, and adding that he was of their family--which motion was filed Aug. 31, 1882.
Upon the hearing at the January term, 1883, appellant offered in evidence the records and files in the foreclosure case, the record of the several deeds above mentioned, and the affidavits of himself and James Warner--identifying said James as the person with whom the copies of said summons were left for said infant defendants and showing that at that time he was the head of their family. The fact last stated was also proved by the affidavits of N. S. Grandy, William Harris and Orlin Converse, who were all neighbors and familiar acquaintances of the family and of every member thereof during the life of Wm. F. Spellmeyer, and for years after the marriage of his widow to said James Warner. Appellant further offered to submit himself and produce each of the other affiants for such oral examination as the court should direct. But respondents, by their attorneys, while not admitting the truth of the matters set forth in the affidavits, waived the oral examination of said affiants, and offered no evidence on their part.
The court thereupon denied said motion solely upon the ground that it had no power to allow the proposed amendment after so long a time since the return was made; from which decision this appeal was taken.
Appellee here moves to dismiss it because appellant was not a party nor in privity with any party to the foreclosure suit, nor had any interest in the subject-matter of it.
It is doubtless true that, as a rule, only parties to the record, or those so related to them or having some interest in the subject-matter to be affected by the judgment or decree, have the right of appeal from it. 2 Tidd's Pr. 1135 and note: 1 Barb. Ch. Pr. 282; Derrick v. Lamar Ins. Co., 74 Ill. 406-7; Burnham v. Same, 79 Id. 162.
This, however, is not an appeal from the decree or from any order or ruling of the court in the foreclosure case, but only from its decision of a motion by its officer for leave to correct alleged errors in the evidence he had furnished of his ministerial action therein. If there was any error or defect therein which may work injury and it can lawfully be corrected, it ought to be corrected. But since it can not be in any case except by leave of the court, that leave must be asked, and a motion is the proper proceeding for that purpose. The question is, who can make it? The error was the act of the officer. He only is presumed to know the facts according to which it is to be corrected. He may be interested to have it made. The parties prejudiced by the defect may prefer, for some reason, to look to the officer and his sureties for compensation; or if not, may be absent, ignorant or incapable of taking the necessary steps, and prompt action may be required in order to prevent the intervention of other rights. It is therefore his duty as an officer, in the interests of justice and without regard to his own as an individual, or to the wishes of the parties, to see that it is made. Montgomery v. Brown, 2 Gilm. 581. It would seem to follow that he is a proper person to ask the necessary leave; and his right to have it--the whole question involved--being finally determined by the decision of the court denying it, he may have an appeal. We do not say that the party prejudiced has not also the right, in default of action by the officer, to make the motion in his own behalf.
It is further suggested that the allowance of the amendment, if within the power of the court after so long a time, is matter of discretion and therefore can not be reviewed.
Where, however, the leave to amend is refused in such a case, not on the ground of discretion but because the court holds it has no power to grant it, such refusal is error in law. Avery v. Bowman, 39 N. H. 395; Rowell v. Small, 30 Me. 17 Shep. 40; Freeman v. Morris Busbee, N. C. 287.
Had the court then power, after nearly sixteen years elapsed since the return was made, to grant the leave asked?
After the judgment term such amendments are allowable only by virtue of the statute: 2 Tidds Pr. 2d Am. Ed. 660. By the English statute, 8 Henry VI, Ch. 15, the courts were authorized to allow amendments by sheriffs in any process or return so long as the record and process remained before them. When ours was adopted we knew no such practice as the removal of the records and process from the...
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