Jackson v. Jackson

• Decision Date: 19 January 1893
• Citation: 144 Ill. 274,33 N.E. 51
• Parties: JACKSON et al. v. JACKSON et al.
• Court: Illinois Supreme Court

144 Ill. 274

33 N.E. 51

JACKSON et al.

v.JACKSON et al.¹

Supreme Court of Illinois.

Jan. 19, 1893.

Error to circuit court, Stark county; N. E. Worthington, Judge.

Bill of review brought by William A. Jackson and John M. Jackson against John Jackson, Ursula A. Frail, Thomas Frail, and Levi Silliman. The bill was dismissed on demurrer. Complainants bring error. Modified.M. A. Fuller and V. G. Fuller, for plaintiffs in error.

A. P. Miller and M. Schallenberger, for defendants in error.

CRAIG, J.

This was a bill of review brought by William A. and John N. Jackson against John Jackson and others on the 20th day of August, 1890, in which the complainants sought to review and vacate a decree in a partition proceeding rendered on the 6th day of April, 1883, in the circuit court of Stark county. The facts out of which the litigation arose may be briefly stated: John Jackson and Paulina A. Jackson were married on the 14th day of October, 1858, and the following named children were born to them: Lydia E. Jackson, born June 15, 1859; Laura V. Jackson, born October 24, 1860; William A. Jackson, born October 23, 1862; Ursula A. Jackson, born October 7, 1864; John M. Jackson, born August 25, 1866. On the 13th day of March, 1860, Paulina A. Jackson became seised in fee of the W. 1/2 of the N. E. 1/4 of section 2, 12 N. 5 E., in Stark county; and on the 4th day of January, 1873, she became seised of 40 acres, part of the N. W. 1/4 of section 2, in the same township, more particularly described in the petition for partition. On the 29th day of November, 1875, Mrs. Jackson died, leaving her husband, John Jackson, and her five children, surviving her. On the 31st of August, 1882, the two daughters Laura V. and Lydia, together with their husbands and William A. Jackson, who was then a minor, filed a petition for partition of the premises involved, against John Jackson and the other two heirs. John Jackson answered the bill, claiming an estate of tenancy by curtesy in the premises. On the hearing at the March term, 1883, of the court, the court found that John Jackson had an estate in curtesy in all of said premises, and was in possession thereof; that the foregoing named children of Paulina A. Jackson are the owners in common of said premises, subject to the life estate by the curtesy of John Jackson. A decree was entered ordering partition of the premises, subject to the life estate; and Samuel M. Adams, Benjamin R. Brown, and Charles Potter were appointed to make such partition,and, if not subject to division, to appraise and report the same. This cases was continued from term to term, without further action, until March term, 1888, when said commissioners reported that they had examined the premises, and found that they were not susceptible of division without prejudice to parties, and appraised the W. 1/2 N. E. 1/4 section 2 at $60 per acre, and the 40-acre tract at $55; both, however, subject to the life estate of John Jackson. At the March term, 1889, cause dismissed.

It is first contended by appellee that there is no such error appearing on the face of the decree as will authorize a court of equity to interfere by bill of review. If there has been an erroneous application of the facts found by the decree, a court of equity may revise or review the decree by bill of review. Evans v. Clement, 14 Ill. 208. The facts upon which the court found that John Jackson was entitled to hold the premises as tenant by curtesy all appear on the face of the decree. The date of the purchase of the lands by Paulina A. Jackson, with their description, date of her marriage, date of the birth of her children, and date of her death, all appear on the face of the decree. If, therefore, the decree under the facts as found, was erroneous, it could be corrected.

The next question presented is whether the complainants, or either of them, have lost their right to bring this bill by lapse of time. As has been seen, the decree was rendered on the 6th day of April, 1883, and this bill was brought on the 20th day of August, 1890. No time has been prescribed by statute within which a bill of review must be brought, but writs of error are required to be sued out within five years from the time a judgment or decree has been rendered; and, in analogy to the time presented for prosecuting writs of error, it has been held that a bill of this character should be brought within the time allowed for suing out a writ of error. Lyons v. Robbins, 46 Ill. 278. In case of writ of error, section 86, c. 110, of our practice act prescribes that a writ of error shall not be brought after the expiration of five years from the rendition of the decree or judgment, but, if the party entitled to the writ was an infant when the judgment was entered, the time of minority shall be excluded from the five years. Applying this rule to the present case, which we think should be done, John M. Jackson, one of the complainants, as found by the court in its decree, was born August 25, 1866. He would not, therefore, be of age until August 25, 1887. Excluding his minority, he would have until August 25, 1892, to bring his bill, and the bill was filed two years before the time expired. So far, therefore, as John M. Jackson is concerned, his bill was brought in apt time. As respects the other complainant, he occupies a different position. He, as appears, became of age in October, 1883, and hence would be barred in October, 1888. It is, however, said that the time did not begin to run until the suit was finally disposed of, in March, 1889. We do not concur in that view. The rights of all the parties, as to their title and interest in the premises, were fully and definitely determined and settled by the decree of April 6, 1883. That was a final decree, and as to all persons who were parties to the proceeding, and under no disability, the decree could not be reviewed by writ of error or bill of review after five years; and the fact that the cause remained on the docket until 1889, and was then stricken from the docket, does not materially affect the...