Holcomb v. Boynton

• Decision Date: 19 June 1894
• Citation: 37 N.E. 1031,151 Ill. 294
• Parties: HOLCOMB et al. v. BOYNTON.
• Court: Illinois Supreme Court

151 Ill. 294

37 N.E. 1031

HOLCOMB et al.

v.BOYNTON.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, first district.

Bill by Charles O. Boynton against Reuben J. Holcomb, Daniel Pierce, Moses Dean, and others for injunction. Defendants obtained a decree, which was reversed by the appellate court. Defendants appeal. Affirmed.

Charles Wheaton and D. J. Carnes, for appellants.

Hopkins, Aldrich & Thatcher, for appellee.

WILKIN, J.

It appears from the record in this case that on June 29, 1872, on a petition to enforce a mechanic's lien, the county court of Dekalb county rendered a decree in favor of R. Ellwood & Co., as material men, for the sum of $534.58, against W. C. Wilcox and the premises described in the petition, consisting of 106 acres of farmland. The decree provided that unless Wilcox, or some of the parties made defendant, as mortgagees or otherwise, should within a day named pay the sum found due, and costs, the land should be sold, by Charles Kellmer, a special master appointed for that purpose. The proceedings were had under an act of the legislature passed in 1863, conferring upon the county court of Dekalb county concurrent jurisdiction with the circuit court in all suits and proceedings at common law or by statute. Two days after the decree was rendered, July 1, 1872, there went into effect an act repealing the law of 1863, without any saving clause as to proceedings begun and pending under the old law. On the 14th of December, 1872, the special master sold the premises, and Ellwood & Co. became the purchasers. On the 10th of March, 1874, there was a redemption from the sale to Ellwood & Co. under a judgment in favor of Norman C. Warren and against Wilcox, and on the 13th of April, 1874, a sale on execution was made by the sheriff to George P. Wild for $1,425. On the day of the sale to Wild, Daniel Pierce and Moses Dean, as judgment creditors of Wilcox, redeemed from that sale, and the sheriff advertised the land for sale under their execution. Thereupon, appellee, who had been a mortgagee of Wilcox, and had, prior to the sale by the special master, received a deed of conveyance from Wilcox, filed a bill in the circuit court of Dekalb county to enjoin the sale advertised under the Pierce and Dean execution, and for a decree setting aside the special master's sale and all the proceedings has thereafter by way of redemption. A temporary injunction restraining the contemplated sale was granted, and, after pending for a period of 13 years, the cause was sent to the circuit court of Kane county on change of venue. There was a hearing at the October term, 1892, of the last-named court, and a decree rendered dissolving the injunction and dismissing the bill. On appeal to the appellate court, that decree was reversed, and the defendants to the bill now appeal to this court. The principal question in the case is the right of appellants to make the redemption in pursuance of which the sale enjoined was about to be made. That right is based upon the master's sale in the mechanic's lien proceeding, and, unless that sale was valid, there could be no legal rights acquired under it, by redemption or otherwise. It is also contended that, even if that sale was invalid, appellee is estopped to set it up in this action. Both these questions were fully argued in the appellate court, and carefully considered, and we think correctly decided, in the opinion of that court by Harker, P. J., as follows:

‘We entertain no doubt upon the proposition that the sale by the special master on the 14th of December, 1872, was unauthorized and void. By the repealing act of 1872 all right to proceed under the repealed statute was taken away. There was no right to proceed under the decree rendered before the repealing statute went into effect, because there was no saving clause as to pending proceedings, as is usually the case where a law is repealed. Where a statute is repealed without such saving clause, it must be considered, except as to proceedings passed and closed, as if it had never existed. Illinois & M. Canal v. City of Chicago, 14 Ill. 334;Blake v. Peckham, 64 Ill. 362;Assessors v. Osbornes, 9 Wall. 570. The case of Ellwood & Co. against Wilcox was continued on the docket of the county court of Dekalb county from term to term, after the repeal of the law conferring jurisdiction, with report of sale by the special master undisposed of, until November, 1873, when it was transferred to the circuit court of that county. The circuit court, as its November term, 1874, confirmed the report of sale by the special master. The transfer, it is claimed, was authorized by virtue of an act of the legislature, approved April 25, 1874, providing that ‘in all cases where chancery jurisdiction has been conferred on county courts by special enactment, and such chancery jurisdiction has been...