Gilbert v. Maggord

• Court: Illinois Supreme Court
• Writing for the Court: SMITH
• Citation: Gilbert v. Maggord, 1 Scam. 471, 2 Ill. 471, 1838 WL 2556 (Ill. 1838)
• Decision Date: 31 December 1838
• Parties: ABEL GILBERT AND WIFE, plaintiffs in error,v.DAVID MAGGORD, defendant in error.

1 Scam. 471

2 Ill. 471

1838 WL 2556 (Ill.)

ABEL GILBERT AND WIFE, plaintiffs in error,

v.DAVID MAGGORD, defendant in error.

Supreme Court of Illinois.

December Term, 1838.

THIS cause was heard in the Will Circuit Court, before the Hon. John Pearson. Judgment was rendered for the defendant in error.

J. M. STRODE, J. GRANT, J. Y. SCAMMON, and G. SPRING, for the plaintiffs in error.

J. BUTTERFIELD, for the defendant in error.

SMITH, Justice, delivered the opinion of the Court:

This was a proceeding under the statute, by scire facias, to foreclose a mortgage. The defendants pleaded several pleas. The plaintiff, in the Circuit Court, confessed the sixth plea of the defendants, and replied new matters in avoidance. To this replication the defendants demurred, which demurrer being overruled by the Court, the defendants rejoined to the replication, and took issue. The several issues were tried, and verdict and judgment rendered for the plaintiff. It is now assigned for error, first, that the writ is insufficient in law to maintain the action; secondly, that the Circuit Court erred in overruling the defendants' demurrer to the plaintiff's amended replication.

As to the first ground, it is not stated in what particular the writ of scire facias was defective, or insufficient; and it does not appear that any objection to it was made in the Court below, other than such as was alleged and considered in the defendant's sixth plea. There is consequently no other cause of objection before this Court. On the argument, it was said that the wife of the defendant in the Court below, had been improperly made a party. She however appears to have pleaded and raised no objection, whatever, of a personal character.

But if it had been objected formally, in the Circuit Court, we perceive no good reason why she, having signed the mortgage, should not have been made a defendant in the proceedings. On the contrary, there appears to be irresistible reasons why she should be joined and made a co-defendant, as she was one of the mortgagors, and it was necessary to foreclose her equity of redemption and right of dower, that a judgment should pass against her. The judgment is not in personam but in rem, and is only for the sale of the mortgaged premises, to satisfy the debt, damages and costs of suit.

With regard to the second objection, it is to be remarked, that it has been frequently settled in this Court, that where there is judgment on a demurrer against the...