Maloney v. Dewey

• Decision Date: 25 January 1889
• Citation: 19 N.E. 848,127 Ill. 395
• Parties: MALONEY et al. v. DEWEY et al.
• Court: Illinois Supreme Court

127 Ill. 395

19 N.E. 848

MALONEY et al.

v.DEWEY et al.

Supreme Court of Illinois.

January 25, 1889.

Error to superior court of Cook county; JOHN A. JAMIESON, Judge.

Bill by John Maloney and others against Edward Dewey and others, to redeem land sold under foreclosure decree. From a decree dismissing their bill plaintiffs bring error.

Edward Robey and Thomas H. Gault, for plaintiff in error.

Mason Bros., for defendant in error Dewey.

A. & C. B. McCoy, for defendants in error A. E. and S. A. Kent.

SCHOLFIELD, J.

This bill collaterally attacks the validity of a decree of the circuit court of the United States. It alleges, for reasons hereafter to be noticed, that such decree is void, and therefore claims the right of those representing the makers of the trust deed to redeem from it, just as if that decree had never been rendered. The general rule is that where it is once made to appear that a court has jurisdiction, both of the subject-matter and of the parties, the judgment or decree which it pronounces must be held conclusive and binding upon the parties thereto, and their privies, notwithstanding the court may have proceeded irregularly, or erred in its application of the law in the case before it. Cooley, Const. Lim. (1st Ed.) 408 et seq. There are cases which seem to be exceptional to this rule, but which, perhaps, are not, when rightly considered, where the court, although having jurisdiction of the person, and jurisdiction to adjudicate, when properly brought before it, upon the subject-matter, renders a judgment not authorized by law in that class of cases, under any possible proofs,-as, for instance, in a common-law case, a judgment without the verdict of a jury, there appearing to have been no waivers by the parties in interest of the right to have a jury; a judgment punishing a party by imprisonment in the penitentiary under an indictment for a riot, and a verdict of guilty thereunder. In such cases it may perhaps, in a technical sense, accurately enough be said that the court has no jurisdiction of the subject-matter of the particular judgment. But whether these cases fall strictly within the general rule, or form exceptions to it, can be of but little importance, in a practical point of view, so long as the grounds on which they rest are understood and kept in mind. They are not instances of mere misapplication of law to particular facts, or erroneous interpretation of rules in particular cases, but they are attempts to exercise an authority which has no existence, in the particular case, under any possible state of proofs. See Windsor v. McVeigh, 93 U. S. 282, 283;Loyd v. Malone, 23 Ill. 43.

That there was jurisdiction in the United States court to render the decree of foreclosure,-the complainant being a citizen of Wisconsin, and the defendants citizens of this state,-if there was jurisdiction of the defendants, is not denied; but it is contended on behalf of plaintiffs in error that there was not jurisdiction of the defendants, because- First, the summons that was issued was void by reason of not being returnable at a day during the term at which it was issued; second, the guardian ad litem appointed for John Maloney, Jr., was clerk of the court, and therefore prohibited from practicing as a solicitor in chancery, third, William Maloney was insane at the time he was served with process and the decree was rendered; fourth, it does not appear that the summons was properly served.

The first and fourth objections are not based on any allegations in the bill, and should on that ground be disregarded. We will add, however, that in our opinion they would have been untenable if they had been alleged, because they are not sustained by the record.

We are not aware of any statute or rule of any court which requires that a guardian ad litem shall be a solicitor. Counsel for plaintiff in error have called our attention to none, and, in our opinion, there are none. The acts of a guardian ad litem, after appointment, may be erroneous, but, however much so, they cannot be held to relate back, and divest the court of the personal jurisdiction which authorized it to make the appointment.

After inquisition, and the appointment of a conservator for a lunatic, a party filing a bill to enforce the contracts of such lunatic should make the conservator a party. But until inquisition and the appointment of a conservator it is competent to commence suit against the lunatic. The complainant is not bound to ascertain the mental capacity of the defendant, and have a conservator appointed before he can bring suit. King v. Robinson, 33 Me. 114. It is provided by section 6 of our Chancery Code (Rev. St. 1874, p. 199) that ‘in any cause in equity it shall be lawful for the court in which the cause is pending to appoint a guardian ad litem to any * * * insane defendant in such cause,’ etc. But this is not made jurisdictional, and obviously it can have no application where a conservator has been appointed and is acting, or where the complainant had no knowledge of the insanity. The record here shows that there was no inquisition and no appointment of a conservator until after the summons was served, and there is neither averment nor proof that Dewey had any knowledge of William's insanity before the decree was rendered.

It has been held that, where an insane person has been properly before the court, ‘acts done by matter of record, as fines, recoveries, judgments, statutes, recognizances, etc., shall bind as well the idiot as he who becomes non compos mentis.’ Beverley's Case, 4 Coke, 123; Mansfield's Case, 12 Coke,...