Lewis v. Topsico

• Citation: 66 N.E. 276,201 Ill. 320
• Parties: LEWIS v. TOPSICO et al.
• Decision Date: 18 February 1903
• Court: Supreme Court of Illinois

201 Ill. 320

66 N.E. 276

LEWIS

v.TOPSICO et al.

Supreme Court of Illinois.

Feb. 18, 1903.

Error to circuit court, Pope county; A. K. Vickers, Judge.

Bill of review by Henry Lewis against Eli Topsico and others. From a decree dismissing the bill, plaintiff brings error. Affirmed.

Sawyer & Evans, for plaintiff in error.

C. L. V. Mulkey, for defendants in error.

RICKS, J.

This is a writ of error to the circuit court of Pope county to reverse a decree of that court dismissing a bill of review filed in that court by plaintiff in error, on demurrer by defendants in error. The bill was brought to review a decree for partition entered in that court on May 11, 1898, in the case of King v. Lewis, which case was afterwards appealed to this court, and the original decree affirmed. Lewis v. King, 180 Ill. 259, 54 N. E. 330. The original decree sought to be reviewed by this bill was entered upon a bill, and certain amendments thereto, filed in said court on the 17th day of March, 1892, and was there pending until final decree in May, 1898. The material findings of this decree were as follows: ‘That one Edward Baker, sometimes called Ned Baker, departed this life intestate on the 18th day of July, 1891; that at the time of his death said Baker owned in fee simple, and occupied as a homestead, the following described real estate, to wit [describing land]; that Edward Baker left, him surviving, a widow, Mary Ed. Baker, and the following named persons as his only heirs at law: Harriet Baker Wagner (an only surviving child), Mary J. King, Eliza De Graftenreid, and Eli Topsico (his only surviving grandchildren), the three last-named persons being the only surviving children of one Amanda Topsico, a deceased child of said Edward Baker; that by the death of said Edward Baker the above-named heirs at law became seised in fee, as tenants in common, by descent from the said Edward Baker, of the described premises, * * * subject, however, to the rights of dower of the said Mary Baker, the widow of the said Edward Baker; * * * that upon the death of the said Edward Baker his widow, Mary Ed. Baker, before her dower in said premises had ever been assigned to her, and before her homestead therein had ever been allotted or set off to her, * * * executed in favor of the defendant Henry Lewis a lease of, in, and to said premises for a term of fifty-nine years, and also on the same day a warranty deed to the same in favor of the said Henry Lewis; that thereupon the said Mary E. Baker abandoned said premises; * * * that after the commencement of this suit * * * the said Eliza De Graftenreid * * * departed this life intestate, leaving as her only heirs at law her husband, Thomas De Graftenreid, her sister, Mary J. King, her brother, Eli Topsico, and her father, Rudolph Topsico. * * * The court further finds from the evidence that the women, Amanda Tospico, deceased, and Harriet Baker Wagner, are legitimate children of Edward Baker, deceased, born of Mary Elizabeth (or Betsy) Gray; that the woman called Betsy by some of the witnesses, and Mary Elizabeth by others, is the same person, and that she was legally married to the said Edward Baker under the Kentucky statute read in evidence by the complainant in the case, and that such marriage legitimatized both the children of Amanda and the children of Harriet, who are found by the court, under the evidence, to be the only legitimate children born and begotten by the said Edward Baker; * * * that the fifty-nine year lease and the warranty deed * * * to the defendant Henry Lewis * * * conveyed nothing to him; * * * that her deed was a nullity; * * * that the said Henry Lewis has no title or interest in or to the premises in controversy.’ To the original bill, Lewis, the plaintiff in error, filed his answer June 1, 1895, and, further amendments having been made to the bill, the plaintiff in error filed a further answer on October 21, 1895. In both of these answers he explicitly denied that Harriet Wagner, Eli Topsico, Mary King, Thomas De Graftenreid, and Rudolph Topsico were the heirs of Edward Baker, and denied that they were the owners of the land in question. As seen by the above decree, these issues were found against the contention of plaintiff in error, and he prosecuted his appeal to this court, insisting that the decree should be reversed upon the facts; but the court, after a full discussion of the case, affirmed the decree of the lower court. This bill of review as filed October 13, 1899, without notice, and upon a bill that was not sworn to. At the January term, 1900, defendants in error entered a special appearance for that purpose, and made a motion to strike the bill from the files for the various grounds stated-among them being that the plaintiff in error had not complied with the original decree, in that he had not paid the costs in the original suit, and that the bill was not sworn to. Upon a cross-motion, plaintiff in error was allowed to swear to the bill and pay the costs, and, without disposing of the motion to strike from the files, the cause was continued. Without this motion finally being disposed of, defendants in error, at the May term, 1900, filed their demurrer to the bill, which at the October term, 1901, was sustained, and an order entered dismissing the bill, to reverse which this writ is prosecuted.

The bill in the present case is predicated upon alleged newly discovered evidence. The principal fact which is involved in the original decree which it is sought to review was whether Amanda Topsico, deceased, and Harriet Baker Wagner, were legitimate children of Edward Baker, the deceased owner of the land in controversy. Upon that question the findings of the original decree were ‘that the women, Amanda Topsico, deceased, and Harriet Baker Wagner, are legitimate children of Edward Baker, deceased, born of Mary Elizabeth (or Betsy) Gray; that the woman called Betsy by some of the witnesses, and Mary Elizabeth by others, is the same person, and that she was legally married to the said Edward Baker under the Kentucky statute read in evidence by the complainant in the case; and that such marriage legitimatized both the children of Amanda and the children of Harriet, who are found by the court, under the evidence, to be the only legitimate children born and begotten by the said Edward Baker.’ The allegations of the present bill on these propositions are as follows: ‘That since the rendition of said decree, petitioner has discovered new matter and evidence of consequence in said cause,-particularly that Amanda Topsico and Harriet Baker Wagner were not born of her body, as the legitimate children of Edward Baker and Mary Elizabeth Gray (or Betsy Gray), and that said Amanda and Harriet were not born of her body as the legitimate children of Edward Baker, and also that the said Edward Baker and Mary Elizabeth (sometimes called Betsy) were never in fact married or made a marriage declaration under the Kentucky statute, as by the said decree declared and found; that the marriage declaration, purporting to be that of Mary Baker and Ned Baker, offered in evidence, does not mean and does not refer to Edward Baker, deceased, who died in Pope county, July 18, 1891, and who was the owner of the land in question; that it does not refer to Mary Elizabeth (or Betsy) Gray, as is supposed, but refers to other and different persons, to wit, Ned Baker, of Trigg county, Kentucky, who died in that county and state in November, 1896, and Mary Baker, wife of Ned Baker, who died in Trigg county on July 4, 1894.’

The petitioner makes the affidavit of Alice Gardner, formerly Alice Baker, daughter of the last-mentioned Ned Baker and Mary Baker, a part of this petition, and marks it ‘Exhibit A, No. 2.’ The petitioner also makes the affidavit of George Richardson a part of this petition, and marks it ‘Exhibit B, No. 5,’ and then avers ‘that Amanda Topsico was the daughter of Elizabeth Hillman, as appears from a marriage bond given by Rudolph Topsico at the time of their intermarriage in Lyon county, Kentucky, February 20, 1867, a certified record whereof is hereto attached, and made ‘Exhibit B’; that Harriet Baker Wagner was not the person supposed by the decree, but by the record evidence of her marriage in Lyon county, Kentucky, certified copies of which are hereto attached and made a part hereof, she was Harriet Gray, and was the daughter of Richard Hillman and Elizabeth Hillman, and that the Elizabeth Hillman above mentioned is not the Mary Elizabeth or Betsy Gray (or Mary Baker) named in the decree as the former wife of Edward Baker, that died in Pope county, Illinois, but she in fact married Richard Hillman in Lyon county, Kentucky, the 26th day of December, 1866 (her marriage declaration is made a part hereof); and that said Harriet intermarried with one John Sharon May 1, 1880, as the record made a part hereof will show.'

The exhibits attached to the bill of review, and showing the supposed newly discovered evidence, are:

Exhibit A, No. 2. Affidavit of Alice Gardner, made in August, 1899, who gives her age as 42 years, and states that she is the daughter of Ned and Mary Baker, who made their marriage declaration at Cadiz, in Trigg county, Ky., on the 30th day of June, 1866; that she was present at said marriage, and well remembers the same; that said Ned and Mary lived near her, and were at her house often, and frequently talked about their marriage; that her mother, Mary Baker, died July 4, 1894, and her father, Ned Baker, died in November, 1896; that both died in Trigg county, Kentucky, and left no children but the affiant surviving them.

Exhibit B, No. 5. Affidavit of George L. Richardson. Age, 62 years; residence, Trigg county, Ky.; that from early boyhood he was well acquainted with Ned and Mary Baker, and that Alice Baker was the only child born to them; that Mary died in 1894, and Ned in 1896,-both in Trigg county, Ky.; that they are the same Ned and Mary Baker who...