Kruse v. Wilson

• Decision Date: 30 September 1875
• Citation: 1875 WL 8605,79 Ill. 233
• Parties: HENRY KRUSEv.JOHN WILSON.
• Court: Illinois Supreme Court

79 Ill. 233

1875 WL 8605 (Ill.)

HENRY KRUSE

v.JOHN WILSON.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

Messrs. HOPKINS & MUNSON, for the appellant.

Messrs. MCCULLOCH, STEVENS & WILSON, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was ejectment, in the Peoria circuit court, by John Wilson, plaintiff, and against Henry Kruse, defendant, to recover the possession of certain premises, described in the declaration by metes and bounds, being part of the north-west quarter of section 8, in township 8 north, of range 8 east of the fourth principal meridian. The tract claimed by the plaintiff was about five acres, and he deraigned the title from the patentee of the quarter section, one James Marden. The cause was tried by the court without a jury, on the general issue, resulting in a finding and judgment for the plaintiff, to reverse which defendant appeals.

The defendant placed his defense upon two grounds: First. An outstanding paramount title in Thomas S. Dobbins, by purchase, sale and deed, under an execution in an attachment proceeding levied on this land, and against the plaintiff, Wilson. Second. By holding claim and color of title, made in good faith, with payment of all taxes assessed against the land for seven successive years, under this claim and color, and actual possession of the premises for seven years.

To sustain the first ground of claim, defendant relied on certain proceedings in attachment, and a levy of the same upon the premises, and a regular judgment and execution thereon, and a levy of the same, and sale thereunder, with the usual certificate of sale and the sheriff's deed.

These proceedings are attacked in limine by the plaintiff, he insisting they were void, and no title could be derived under them. He insists, as the affidavit is the foundation of the proceeding, if no affidavit was filed, all the subsequent proceedings are void; that it is a jurisdictional fact, and if there was no affidavit there was no jurisdiction to entertain the proceeding.

The basis of defendant's title being proceedings in attachment, appellee insists they must be in compliance with the statute, and as the affidavit is the foundation and commencement of the suit, without which the court had no jurisdiction to issue the writ, if that is radically defective, and shows upon its face that it was a nullity, all subsequent proceedings are void.

What purports to be the affidavit is in the usual form of an affidavit against a non-resident debtor, and is unexceptionable in all its statements, and concludes with a prayer that a writ of attachment may issue against said Wilson, and be levied on his lands and tenements, in accordance with the statute in such case made and provided, and is signed Wm. A. Hemon, and where the jurat should be is the following: “Subscribed and sworn to before me, this 30th day of January, A. D. 1861.”

This affidavit was filed in the clerk's office. The writ of attachment was issued the same day, in the form prescribed by the statute, in which is this recital: Whereas, William A. Hemon, of the county of Peoria, and State of Illinois, has complained, on oath, to Charles Kettele, clerk of the county court, etc.

On objection made in the circuit court, on the trial of this ejectment, that the affidavit was not sworn to, and was therefore void, William A. Hemon was sworn, and he testified he signed the affidavit, and swore to it at the time, in the clerk's office, before the deputy clerk. He was there to commence a suit in attachment, and swore to the affidavit for that purpose; he signed it there at the counter, at the same time that he swore to it; his recollection is very distinct that he swore to it. On his cross-examination he said he made two affidavits for attachments in the county court; does not remember before whom he swore to the other one; this case he took to Kettele, and got out the papers.

But independent of this testimony, what are the presumptions that this affidavit was sworn to? It was filed in the clerk's office, and the clerk recites in the writ of attachment that William A. Hemon had complained, on oath, to Charles Kettele, clerk, etc.

The statute says, if any creditor, or his agent or attorney, shall file an affidavit in the office of the clerk, etc., setting forth, etc., it shall be lawful for such clerk to issue a writ of attachment, directed to the sheriff, etc.

That such an affidavit was filed, the file mark on this shows, and that the complaint was on the oath of the party praying the writ, we have the recital of the fact in the writ. It is not to be presumed the clerk has made a false statement in the writ, or that he would have issued the writ without the oath.

Had the affidavit been attacked on the ground here assumed, in the county court, it could have been amended there under sec. 8 of the statute. This section is very broad and comprehensive. If amendable there, as it clearly was. it can not be alleged of it that it was void. What is amendable is not void. It was held by this court, in Campbell v. Whetstone, 3 Scam. 361, amendments should be allowed, however defective the affidavit may be, and although it was sworn to before an improper officer, and it would be error to refuse it.

But this affidavit needs no amendment. All the facts and circumstances attending it show, conclusively, it was sworn to at the time it was signed.

Several cases are referred to, where in the attachment proceeding the question arose upon a like objection. One, English v. Wall, 12 Rob. Law, 132, where it was held, when an affidavit for attachment had written upon it by the judge the words “subscribed and sworn to before me,” the signature of the judge being omitted, but below the judge signed an order that the writ issue, that these facts showed, by strong implication, that the affidavit was sworn to before him.

The clerk who issued the writ in question is quite as clearly connected with the oath of the attaching creditor as the judge, for he states complaint was made to him on oath.

In Cook v. Jenkins et al. 30 Iowa, 452, when this question was raised in a collateral proceeding, as here, the court held that the attachment proceedings could not be attacked on the ground that the jurat to the affidavit was not signed by the officer administering the oath, if it be shown that in fact the oath was administered by him. This court, in Booth et al. v. Rees, 26 Ill. 45, held that a defective affidavit in attachment is not void, and could only be attacked in a direct proceeding.

If an oath was administered, and by the proper officer, as it assuredly was, the law was satisfied, and the mere omission of the clerk to put his name to an act which was done through him as the instrument, should not prejudice an innocent party, who has done all he was required to do. The clerk's omission to write his name, where it should have been written, was not the fault or neglect of the affiant. He signed and swore to the affidavit. The clerk filed it, and issued the writ, reciting therein that the plaintiff therein had made oath before him,...