Hagerty v. Stalzenback
| Decision Date | 30 September 1867 |
| Citation | 46 Ill. 303,1867 WL 5373 |
| Parties | JAMES I. MULFORD et al. by S. A. HAGERTY, their next friend.v.ALBERT STALZENBACK et al. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
This was a proceeding in chancery, by original bill, filed by the heirs of Edward A. Mulford, by their next friend, against the defendants in error, and others, to set aside conveyances of real estate, founded upon certain proceedings of the Cook county Circuit Court, on an application of Catharine Mulford, guardian of the plaintiffs in error, for a decree authorizing her to sell lands of her wards, under the statute.
On the hearing of the cause, on the 4th of December, 1864, the court rendered a decree dismissing the complainants' bill as to the defendants in error, for want of equity. The case is brought to this court by writ of error.
The record is very voluminous, and it is considered inexpedient to incumber these reports with an elaborate statement of the facts.
Sufficient facts appear in the opinion for an understanding of the decision.
Mr. U. F. LINDER, and Messrs. MOORE & CAULFIELD, for the plaintiffs in error. Messrs. GARRISON & BLANCHARD, for the defendant in error ALBERT STALZENBACK.
Messrs. HERVEY, ANTHONY & GALT, for the defendant in error, WILLIAM BRADLEY HENDERSHOTT.
This was a bill in chancery, in the Cook Circuit Court, by James J. Mulford and the other heirs-at-law of Edward A. Mulford, deceased, to set aside certain deeds made by the guardian on a sale of the lands belonging to the complainants when they were minors, under an order of court, on the allegation that the decree was procured by fraud, and that it was not necessary to sell the lands, and that the Circuit Court making the order of sale, had no jurisdiction.
On final hearing, the bill was dismissed. On appeal here, this dismissal of the bill is assigned as error.
The plaintiffs in error make these points: First, that the decree directing the sale of the lands was not only erroneous, but absolutely void, there being no averment or proof that the guardian had power, under the direction of the Court of Probate, to superintend the education and nurture of the wards, and no averment or proof in the record, that the guardian had been ordered or directed by the Probate Court to pay out the money of the wards for their support and education; and second, that the decree directing the sale, required the same to be for one-fourth cash, and the balance in one, two and three years, with interest, payable annually, and that the deferred payments should be secured by notes and mortgages on the real estate thus sold, and no such notes and mortgages were taken by the guardian.
In support of the first point, the case of Loyd et al. v. Malone et al., 23 Ill., 43, is referred to. That was an original bill filed by infants attacking a decree under which the lands had been sold, and impeaching it, on the allegation that all the proceedings by the guardian anterior to the application for the sale of the lands, and the application for the sale, were collusive, and designed to injure the infants, and to deprive them of their inheritance, and that no necessity existed for converting their land into money for their support and education, and that the guardian, in procuring the order of sale, was actuated by improper motives to injure them. That bill impeached the decree for the sale of the land, and to which the guardian was made a defendant with the purchaser under his sale. Here the guardian is not a party, and the bill attacks collaterally, only, the decree of sale obtained by the guardian, alleging a want of jurisdiction in the Circuit Court to order the sale.
If the Circuit Court had jurisdiction, but proceeded erroneously, this bill cannot be entertained. The rule is, if a court has jurisdiction of the parties and subject matter of the controversy, and the party against whom the judgment is rendered has had either actual or constructive notice of the pendency of the suit, no error can render the judgment void; but when the jurisdiction over the person or subject matter does not exist, the judgment is a nullity. Buckmaster v. Carlin, 3 Scam. 104; Swiggart v. Harber, 4 ib. 364; Rockwell v. Jones, 21 Ill. 279; Wimberly v. Hurst, 33 ib. 166; White v. Jones, 38 ib. 160.
The question, then, is, had the Circuit Court of Cook county jurisdiction of the application of the guardian to sell these lands, and of the persons of these infants?
Section 10, ch. 47, Rev. Stat., provides that the Circuit Court may, for just and reasonable cause, being satisfied that the guardian has faithfully applied all the personal estate, order the sale of the real estate of the ward, on the application of the guardian by petition in writing, stating the facts, and having given notice to all persons concerned, of such intended application, in some public newspaper printed in this State, or by setting up written notices in three of the most public places in the county, at least three weeks before the sitting of the court. Such order may enable the guardian to sell and convey the real estate for the support and education of the ward, or to invest the proceeds in other real estate. The court, in such order, shall direct the time and place of sale, the notice thereof to be given, and may direct the sale to be made on reasonable credit, and require such security of the guardian and purchaser as the interest of the ward may require. It shall be the duty of the guardian making such sale, as soon as may be, to make return of such proceedings to the court granting the order, which, if approved by the court, shall be recorded, and shall vest in the purchaser or purchasers all the interest the ward had in the estate so sold. Scates' Comp. 552.
We have compared the petition and proceedings of the Circuit Court, in this case, with those brought before the court in Young et al. v. Lorain et al., 11 Ill. 624, where the same question of jurisdiction was raised, and find no substantial difference between them. They are for all the purposes of this question, identical; and as it was there held, that as sufficient appeared to set the court to work, therefore, the jurisdiction was established. The rule is, that enough must appear, either in the application or the order, or at least somewhere upon the face of the proceedings, to call upon the court to proceed to act, and when that does appear, then the court has properly acquired jurisdiction....
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