Glos v. Patterson
| Decision Date | 20 April 1904 |
| Citation | 209 Ill. 448,70 N.E. 911 |
| Parties | GLOS v. PATTERSON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; F. A. Smith, Judge.
Action by Catherine Patterson against Adam S. Glos and another. From a judgment for plaintiff, defendant Glos appeals. Affirmed.
See 68 N. E. 443.
Enoch J. Price, for appellant.
William Gibson and F. W. Becker, for appellee.
On November 9, 1898, appellee brought suit in ejectment in the circuit court of Cook county against George Lotz and Adam S. Glos to recover possession of lot 24, block 11, in the city of Chicago. A trial by jury on July 22, 1901, resulted in a judgment for the plaintiff for possession of the premises, from which an appeal was prosecuted to this court, and the judgment below was affirmed. See 204 Ill. 540, 68 N. E. 443. Within a year after the entry of that judgment the defendant Glos paid the costs and took a new trial under the statute. A jury being waived, a trial was had before the court, and judgment again rendered on December 31, 1902, in favor of the plaintiff, and the defendant again appeals.
A statement of the facts of the case will be found in our former opinion (Glos v. Patterson, 204 Ill. 540, 68 N. E. 443); also the questions then presented for our decision.
At the beginning of the trial upon which the judgment now appealed from was rendered, defendant entered a motion for leave to file a verified plea denying possession, which was overruled by the court, and renewed at the close of all the evidence, and again denied. It is insisted by counsel for appellant that such a plea was proper in order to make the issues conform to the proof. It is impossible to see what injury could have resulted to the defendant on account of the absence of such a plea. He was made a party defendant under section 6 of the ejectment act (Hurd's Rev. St. 1901, c. 45), as one not in possession of the premises sued for, and it was not claimed or pretended upon the trial that he was, or ever had been, in possession. What purpose, then, would his plea have served denying possession? Neither was the plea presented in apt time, the motion not being made until the case was called for trial, and no excuse offered for the failure to present it sooner. Phenix Ins. Co. v. Stocks, 149 Ill. 319, 36 N. E. 408.
On the trial plaintiff attempted to show a connected paper title derived from the government, but, except one certified copy from the general land office, all the links in her chain of title prior to the fire of 1871 were shown by an affidavit of William Gibson as to the loss of the original deeds and the destruction by fire of the original records, followed by two affidavits of Henry H. Handy, one having an annexed memorandum which the affidavit stated was a true copy of an abstract of title in the possession of the Title Guarantee & Trust Company, and another affidavit having an annexed memorandum which the affidavit stated was a true copy from a book of original entry formerly belonging to Jones & Sellars, and now in the possession of the Title Guarantee & Trust Company. There was also an affidavit, with memorandum attached, made by Harrison B. Riley, which stated that the memorandum was a true copy of an abstract and minutes taken from books and indices formerly belonging to Chase Bros. and Shortall & Hoard, etc., now in the possession of the Title Guarantee & Trust Company. No evidence was offered to show the history of these memoranda or the correctness of the copies, and appellant claims that the preliminary proofs, as made, were insufficient, under the statute, to admit the secondary evidence.
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