Horn v. Metzger

• Decision Date: 03 June 1908
• Citation: 84 N.E. 893,234 Ill. 240
• Parties: HORN et al. v. METZGER et al.
• Court: Illinois Supreme Court

234 Ill. 240

84 N.E. 893

HORN et al.

v.METZGER et al.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 3, 1908.

Error to City Court of East St. Louis; W. J. N. Moyers, Judge.

Action by Theodore Horn and another against Edward Metzger and others. From a judgment for defendants, plaintiffs bring error. Reversed and remanded.D. P. Boyle and Webb & Crowe, for plaintiffs in error.

Keefe & Sullivan, for defendants in error.

The plaintiffs in error, Theodore Horn and Ernst Horn, brought ejectment against Edward Metzger and others to recover possession of lot 8, block 175, of the platted town (now city) of East St. Louis. The common source of title was Emanuel Trotier, the owner of the fee, who conveyed the premises to Gustav Horn and Henry Jackeisch. On March 2, 1877, Gustav Horn conveyed his undivided one half interest to John Polish, who conveyed the same on May 10, 1879, to Emilie Horn, wife of Gustav Horn. On August 17, 1885, the widow and heirs of Henry Jackeisch conveyed the other half of the premises to Emilie Horn, who died on May 16, 1886, leaving surviving her Gustav Horn, her husband, and nine children, three of whom were triplets six days old, who died shortly after their mother, leaving their father and the other six children as their heirs at law; the plaintiffs in error being two of the six children.

On January 9, 1888, Gustav Horn filed his bill in the city court of East St. Louis against his six children, alleging that in 1877, being in poor health and believing he was going to die, he conveyed his undivided one half interest in the premises, together with all his other lands, without consideration, to his wife, Emilie Horn, with the understanding that in case he recovered she was to reconvey to him; that he subsequently purchased the other half from the Jackeisch heirs, and for the same reason caused the title to be placed in his wife; and that after he recovered his health his wife frequently requested him to have deeds prepared by which she could reconvey said property to him, but he neglected to do so until her death. The defendants were all minors, and the bill prayed that a guardian ad litem might be appointed for them; that their interest in said premises as children and heirs of Emilie Horn, by reason of the deeds aforesaid, might he vested in the complainant; and that the master in chancery be required to make a deed conveying all interest vested in the defendants under said deeds. A decree was entered in accordance with the prayer of the bill, and on May 18, 1888, the master made the deed and it was filed for record. On the date of the death of Emilie Horn Gustav Horn was in possession of the premises claiming absolute title thereto, and he paid all taxes assessed against them until February 21, 1902, when he conveyed them, by warranty deed, to the defendant in error Edward Metzger, who has since paid all taxes thereon. Gustav Horn died in July, 1906, and after his death the plaintiffs in error, on July 13, 1906, began this action of ejectment. A jury was waived, and a trial was had before the court upon an agreed state of facts and evidence heard in open court, resulting in a judgment for the defendants, to reverse which this writ of error is prosecuted.

DUNN, J. (after stating the facts as above).

The bill of Gustav Horn against his children was filed during the January term of the city court of East St. Louis, which began on January 2d. It was not entitled of any term. The bill is mutilated, and a part of the prayer for process has been destroyed. No summons appears in the record, and no other paper in the case except the original draft of the decree. It appears taht a part of the building in which the records of the court were kept was destroyed in 1896 by a cyclone, in which many of the books and papers of the court were lost. The decree is of record in the chancery record of the court. A term of the court was held beginning on April 16, 1888. The convening order of the January term appears on page 280 of Chancery Record A, that of the April term on page 289, and the decree is recorded on pages 286 and 287. The decree, as recorded, does not state the term, but is noted as filed May 18, 1888. The draft of the decree is preceded by a caption as of the January term, and is marked filed May 18, 1888.

It is contended that the decree was rendered at the January term, and was therefore void, because, the bill having been filed during that term, no summons could have been issued requiring an answer at that term, and the defendants, being minors, could not have given jurisdiction by entering their appearance. The decree contains no recital of notice to the defendants, either by service of process or otherwise; but the city court of East St. Louis is a court of general jurisdiction, and from the fact that it rendered the decree the presumption arises that it had jurisdiction both as to the subject-matter and the parties to do so. It is a rule of uniform application in relation to superior courts or courts of general jurisdiction that nothing is to be presumed to be out of their jurisdiction but that which specially appears to be so. Where the record of a judgment or decree is relied on in a collateral proceeding, jurisdiction must be presumed in favor of a court of general jurisdiction, although it is not alleged and does not appear in the record. Swearengen v. Gulick, 67 Ill. 208;Benefield v. Albert, 132 Ill. 665, 24...