Gilmore v. Sapp

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: 1881 WL 10619,100 Ill. 297
• Decision Date: 30 September 1881
• Parties: CHARLES D. GILMOREv.MATILDA SAPP et al.

100 Ill. 297
1881 WL 10619 (Ill.)

CHARLES D. GILMORE
v.
MATILDA SAPP et al.

Supreme Court of Illinois.

Filed at Springfield Sept. 30, 1881.

[100 Ill. 298]

WRIT OF ERROR to the Circuit Court of Vermilion county; the Hon. OLIVER L. DAVIS, Judge, presiding.

Mr. N. M. BROADWELL, and Mr. C. M. SWALLOW, for the plaintiff in error:

The record fails to show a sufficient publication of the notice of the pendency of the suit. The statute requires that it “shall be published at least once in each week, for four successive weeks.” Chancery Code, ch. 22, sec. 12.

This mode of service being in derogation of the common law, the statute must be strictly pursued, and no presumptions indulged. Lickins v. McCormick, 39 Wis. 313; Bradley v. Jamison, 46 Ia. 68; Fountain v. Houston, 58 Ind. 316.

It is not the mere date of the issue, but the time of publication, that the statute regards. The notice is required to be published, or made public, by putting the paper into circulation. Publication is something more than the mere printing of the paper. Hinchman v. Barns, 21 Mich. 556; Price v. Butlers, 21 Kan. 124.

The bill is fatally deficient in showing any ground for relief against the cancellation of the Swisher entry. The allegation is: “The commissioner of the general land office, without authority or notice to and without the knowledge of the said Henry Swisher, set aside and cancelled the said purchase, and caused the said certificate of purchase and the record of said patent to be cancelled.” The presumption being in favor of the regularity of the official acts of a public officer, a general charge such as this, without appropriate specifications, can not be regarded.

The finding of land officers upon the facts in matters of preëmption has been held conclusive by the courts, upon the

[100 Ill. 299]

familiar ground that such officers, in their findings, were acting in a quasi judicial capacity. Robbins v. Bunn, 54 Ill. 51; Gray v. McCance, 14 Id. 343; Shipley v. Cowan, 1 Otto, 330; Marquez v. Frisbie, 11 Id. 473.

The bill is multifarious. Three distinct and separate tracts of land are involved in the suit, and the claimants of each tract have and claim no interest in either of the other tracts. Different complainants can not join when the cause of action is not joint. Yeton v. Lennox, 8 Pet. 123; Armstrong v. County, 10 Ohio, 235; Story's Eq. Pl. sec. 279.

Mr. E. S. TERRY, for the defendants in error:

There can not be any substantial difference between the words “shall be published at least once a week for four successive weeks,” and “published for four successive weeks, beginning with the issue dated December 17, 1875, and ending with the issue dated on the 7th day of January, 1876.”

It is objected that it does not appear, from the finding of the record, whether the paper was a weekly, semi-weekly or monthly paper, nor that it was issued in the interval between the days mentioned. The certificate of the printer shows the paper in which the notice was printed to be a weekly paper.

It was held in Underhill v. Corwin, 15 Ill. 556, that the certificate of the printer certifying that a notice “was inserted in said paper commencing with August 21, 1852, and ending October 2, 1852--six weeks,”--would be taken to show that publication had been made for four successive weeks within these periods.

This court has also held, that where a statute required a notice for three weeks successively, and the publication was in a weekly paper, on the 16th, 23d and 30th, the publication was sufficient. Madden v. Cooper, 47 Ill. 359.

So, a notice published for four successive weeks, the first publication being on the 20th of March, so that sixty days intervened between the first insertion and the date of the judgment, was held good. Pierce v. Culton, 12 Ill. 364.

[100 Ill. 300]

It is complained that the publication in this case was made for twenty-one days only--just three weeks. The statute requires only that the notice should be published once a week for four consecutive weeks, and the notice in this case is sufficient, though four full weeks have not elapsed between the first and last publications. Andrews v. The People, 84 Ill. 28; St. Joseph Manufacturing Co. v. Daggett, Id. 556.

Also, it is objected that different plaintiffs can not unite their claims where the cause of action is not joint.

It is a rule that if the grounds of the several actions joined arise out of one and the same transaction or series of transactions, all...