Miller v. Miller
| Decision Date | 23 April 1914 |
| Docket Number | No. 8783.,8783. |
| Citation | 263 Ill. 18,104 N.E. 1078 |
| Parties | MILLER v. MILLER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Superior Court, Cook County; William E. Dever, Judge.
Partition suit by O. C. Miller against E. M. Miller, Jacob Glos, and others. Decree of partition, and Glos moved to vacate the decree, and in the alternative to be allowed an appeal, and the motions were denied, and he brings error. Writ dismissed.
John R. O'Connor, of Chicago, for plaintiff in error.
Robert Zaleski, of Chicago (Sherman C. Spitzer, of Chicago, of counsel), for defendants in error.
Plaintiff in error, Jacob Glos, has sued out this writ of error to review a decree for partition of the superior court of Cook county. Plaintiff in error is the holder of a tax title to the property in question, which title is adverse to that of the tenants in common. He was not made a party defendant to the bill, unless it should be held that he was made a defendant under the designation of ‘unknown owners.’ After naming all the cotenants as defendants, except the complainant in the bill, and all those who had a common interest in the property with the cotenants, the bill alleged that there were other persons who claimed some right, title, or interest in or to the premises who were unknown, and they were made parties defendant by the name and description of unknown owners. The bill prayed that all of the defendants except the cotenants should be perpetually restrained from claiming or asserting any title to or interest in the premises and that a partition might be had among the tenants in common. Before hearing was had on the bill, Jacob Glos filed his written entry of appearance, claiming to have been made a defendant under the designation of unknown owners, and afterwards filed an answer, in which he alleged that he had derived title to the premises by deed from the executors of Daniel J. Hubbard, who in his lifetime had secured title to the property from tax sales and deeds issued thereunder. The complainant moved to strike the appearance and answer of plaintiff in error from the files, which motion was denied. The bill was thereupon dismissed as to plaintiff in error, over his objection, on motion of the complainant. A decree was entered finding title in the cotenants as set up in the bill; also finding that other persons who had been made parties defendant by the description of unknown owners claimed some right, title, or interest in the premises, but that none of such persons had any valid right, title, or interest in or to the premises, and ordering partition of the property. Thereafter plaintiff in error entered his motion to vacate the decree, and in the alternative that he be allowed an appeal. These motions were continued to the next term of court, at which time he again filed his written appearance and also a petition for leave to answer the bill by way of interpleader. These motions were denied and the petition was stricken from the files. Plaintiff in error prayed an appeal, which was denied. Thereupon this writ of error was sued out.
The contention of plaintiff in error is that he was a necessary party to the partition proceeding and that his rights and interests in the property should have been ascertained by the court, and if his title was found to be invalid he should have been reimbursed in accordance with the Revenue Law. Defendants in error concede that plaintiff in error was a proper party defendant to the bill for partition but deny that he was a necessary party. In support of his position plaintiff in error cites a line of cases which hold that the practice prescribed in the Partition Act applies to bills in chancery for partition, and insists that under that act he was a necessary party defendant. Defendants in error rely upon the fact that this is a proceeding by bill in chancery and not by petition under the statute, and cite cases in support of the contention that the practice prescribed by the Partition Act does not apply. They cite such cases as Labadie v. Hewitt, 85 Ill. 341, which holds that bills in chancery for partition are not required to conform to the practice of the Partition Act, and that the Partition Act of 1861 (Hurd's Rev. St. 1913, c. 106) fully recognizes chancery proceedings as not being governed by that act and as not coming within its provisions; and Wilson v. Illinois Trust & Savings Bank, 166 Ill. 9, 46 N. E. 740, which holds that the Partition Act, with the exception of the last two sections, relates to a proceeding at law and nowise affects the jurisdiction of equity, which has long been well established. Plaintiff in error relies upon and cites such cases as Loomis v. Riley, 24 Ill. 307;Gage v. Reid, 104 Ill. 509;Gage v. Bissell, 119 Ill. 298, 10 N. E. 238;Trainor v. Greenough, 145 Ill. 543, 32 N. E. 545;Prichard v. Littlejohn, 128 Ill. 123, 21 N. E. 10;Rohn v. Harris, 130 Ill. 525, 22 N. E. 587;Coffin v. Argo, 134 Ill. 276, 24 N. E. 1068;Spencer v. Wiley, 149 Ill. 56, 36 N. E. 627;Cheney v. Ricks, 168 Ill. 533, 48 N. E. 75;Wachter v. Doerr, 210 Ill. 242, 71 N. E. 401;Crane v. Stafford, 217 Ill. 21, 75 N. E. 424, and Schulz v. Hasse, 227 Ill. 156, 81 N. E. 50-as holding in effect, that the practice prescribed in the Partition Act applies to proceedings in chancery for partition as well as to petitions under that act. Those cases which hold that sections 5 and 6 of the Partition Act govern partition proceedings in chancery are particularly relied upon.
[1] That there is some conflict in the decisions on the question of the practice which governs in chancery proceedings is apparent, but this conflict should not result in any confusion as to the proper practice to be followed. By our later decisions we have held that the practice in chancery proceedings must conform to the Partition Act. It is therefore immaterial, so far as the determination whether plaintiff in error was a necessary party defendant is concerned, that this was a bill in chancery instead of a petition at law, as sections 5 and 6 of the Partition Act, as to who shall be considered necessary parties, apply in either event. Gage v. Reid, supra; Prichard v. Littlejohn, supra; Cheney v. Ricks, supra; Wachter v. Doerr, supra. Said section 5 provides, among other things, that the petition shall set forth the interests of all parties interested therein, including tenants for years, for life, by curtesy, or in dower, and of all persons entitled to the reversion, remainder, or inheritance, and of every person who upon any contingency may be or become entitled to any beneficiary interest in the premises; and section 6 provides that every person having any interest, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant. It is by virtue of the language of these two sections that plaintiff in error contends he was a necessary party. As we have already stated, these sections of the statute apply in this proceeding and must be complied...
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