Gibson v. Roll

• Decision Date: 31 January 1863
• Citation: 30 Ill. 172,20 Peck 172,83 Am.Dec. 181,1863 WL 3033
• Parties: SAMUEL GIBSON, Plaintiff in Error,v.JOHN E. ROLL, Defendant in Error.
• Court: Illinois Supreme Court

30 Ill. 172
1863 WL 3033 (Ill.)
83 Am.Dec. 181
20 Peck (IL) 172

SAMUEL GIBSON, Plaintiff in Error,
v.
JOHN E. ROLL, Defendant in Error.

Supreme Court of Illinois.

January Term, 1863.

ERROR TO SANGAMON.

Notice by an administrator, of an application to sell lands, must be published for six full weeks before the day therein specified, as the time when his petition will be presented.

If this is not done, parties are not bound to take notice of such application. And although the petition was not in fact presented until a latcr day than the one fixed by the notice, nor till after the six weeks, required by the statute, had expired, yet that fact does not cure the defect.

Parties interested, are bound, after proper notice, to appear and contest the application on the day specified, but if the petition is not then presented, they are not required to wait from day to day to see whether any move will be made in the case.

After the presentation of the petition the court may fix a subsequent day for the hearing of proofs, or other action in the case.

THIS case was decided by this Court at the January term, 1862, and is again brought before it on an application for a re-hearing. The facts are as follows:

Plaintiff filed his declaration in ejectment, against Henry R. Richardson for the recovery of the undivided half of the east twenty feet of lot No. 7, in block No. 10, city of Springfield.

Defendant pleads the general issue, and Roll substituted, and possession of premises by him admitted. It is also admitted that Benjamin F. Jewett died intestate, on or about the 20th day of December, 1848, seized in fee simple of the premises, and that defendant has chain of title perfect and complete, from the heirs of said Jewett, to the premises.

Plaintiff offered in evidence a transcript of the record of the County Court of Tazewell county, of the proceedings of said court, in the matter of William S. Maus, administrator of Benjamin F. Jewett, dating from 9th day of September, 1856, and setting forth the petition of said administrator for sale of real estate of said Jewett, including the premises, the order of sale, and report of sale of premises to John D. Bail, and approval of sale by the court.

[30 Ill. 173]

Plaintiff also offered in evidence a deed from said administrator to John D. Bail, conveying premises; also a deed from said Bail to Ninian E. Primm, and plaintiff, for said premises. Defendant objecting to said evidence, his odjections were sustained, and plaintiff excepted.

The defendant offered in evidence a transcript of the record of the proceedings of the County Court of Tazewell county in the matter of William S. Maus, administrator of Benjamin F. Jewett, showing a notice in words and figures following:

“ADMINISTRATOR'S NOTICE.--Notice is hereby given that I will make application to the County Court of Tazewell county, on the third day of September, for a decree to sell all or so much of the real estate of Benjamin F. Jewett, deceased, late of Tazewell county, as will be sufficient to pay the debts of said estate. All persons interested are requested to appear and show cause, if any they have, why such decree should not be granted.

WILLIAM S. MAUS,

+-------------------------------------------------------+
                ¦PEKIN, July 24, 1856.¦Adm'r of Benj. F. Jewett, dec'd.”¦
                +-------------------------------------------------------+
                

Accompanied by the following certificate:

“We, Young & Underwood, printers and publishers of the ‘Weekly Plaindealer,’ do hereby certify that the annexed advertisement was published in the ‘Weekly Plaindealer’ for six weeks successively--the first publication being on the 24th day of July, 1856. and the last publication on the fourth day of September A. D. 1856.

YOUNG & UNDERWOOD,

Publishers and Printers.”

It is admitted that said notice was the only one given and published previous to said sale, under the order...