Greenman v. Harvey

• Decision Date: 31 January 1870
• Parties: EDWIN G. GREENMAN et al.v.ANNA HARVEY.
• Court: Illinois Supreme Court

53 Ill. 386

1870 WL 6215 (Ill.)

EDWIN G. GREENMAN et al.

v.ANNA HARVEY.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Christian county; the Hon. EDWARD Y. RICE, Judge, presiding.

The opinion states the case.

Messrs. MOULTON & CHAFFEE, for the plaintiffs in error.

Messrs. HENRY & READ, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit brought by defendant in error, in the Christian circuit court, against plaintiffs in error, for the assignment of dower in the premises described on the petition. It alleges that in October, 1865, Thomas Harvey bargained to sell the south half of lot thirteen, in block one, in the town of Pana, to Greenman and Dowling, and gave to them a bond for a conveyance on payment of the purchase money; that Harvey died before payment was made, and no deed was executed; that after their purchase, they entered into possession, and had occupied the premises until the bill was filed; that Harvey made a will before his death, disposing of his property, but petitioner had renounced the provisions of the will, and elected to take under the statute. It is further alleged that John Harvey, a son, and Anna Bell Bean, are his only heirs at law. Greenman, Dowling, Harvey, Anna Bell Bean, and Crager, her guardian, were made defendants. There was a prayer for process and for assignment of dower in the premises. A summons was issued against all the defendants but Anna Bell Bean, and upon it this return was made:

“Served the within named, by leaving a true copy of the same with the within named Edwin G. Greenman, William L. Dowling, John Harvey and Samuel Crager, guardian of Anna Bell Bean. This fifth day of April, 1867.

JOHN WHITE, Sheriff.

PATRICK HENNESSY, Deputy.”

Subsequently, Crager, as the guardian of Anna Bell Bean, filed an answer, in which he says he knows of no defense, but requires proof, and asks the court to protect the interests of his ward.

It is urged that there was not a sufficient service of the summons to give the court jurisdiction of the defendants; that the date of the service is uncertain, and that it does not appear whether a copy of the summons was served on each of them. The return is dated the fifth of April, and it says it was served on that day. It will bear no other construction. After saying that he had served the persons named in the summons, it says, “this fifth day of April.” It is the same, in sense, as if it had commenced, “this fifth day of April, served,” etc. There is no uncertainty or doubt in regard to when it was served, and the return is explicit that the summons was served by leaving a true copy with the defendants. We think it may reasonably be inferred that a copy was delivered to each. But if it will not bear that construction, then it can only be understood that a copy was delivered to all the defendants collectively, and not to one out of the number; and this should be held sufficient under the statute. It requires that the service shall be by delivering a copy to the defendant in chancery causes, and this was served in that mode, and if all were present, and they received the copy, it would answer the requirements of the statute.

It is urged that while Anna Bell Bean was made a defendant in the bill, she was not named in the summons, nor was she served with process, and that the guardian had no power to enter her appearance. That she was a necessary party, there can be no question. As an owner of one-half the fee, at law, she was a necessary party, that, on a final hearing, her interests and rights should be passed...