Miller v. Rowan

• Citation: 96 N.E. 285,251 Ill. 344
• Parties: MILLER et al. v. ROWAN et al.
• Decision Date: 25 October 1911
• Court: Supreme Court of Illinois

251 Ill. 344

96 N.E. 285

MILLER et al.

v.ROWAN et al.

Supreme Court of Illinois.

Oct. 25, 1911.

Appeal from Circuit Court, Jackson County; William N. Butler, Judge.

Suit for partition by Elizabeth Miller and others against Joseph Rowan and others. There was a decree granting relief, and defendant Joseph Rowan appeals. Affirmed.

Isaac K. Levy and Charles E. Feirich, for appellant.

James H. Martin, for appellees.

CARTWRIGHT, J.

Upon a bill for partition filed by the appellees against the appellant Joseph Rowan and others, the circuit court of Jackson county entered a decree finding that the lands descended to the heirs at law of Alexander Rowan and McFarland Rowan, deceased, and awarded partition as prayed for. The bill alleged that Alexander Rowan and McFarland Rowan owned the lands as tenants in common, each owning an undivided one-half; that Alexander Rowan died intestate on February 15, 1906, leaving no widow or child or descendant; that McFarland Rowan died in October, 1909, intestate, leaving no widow, child, or descendant, and that the lands passed by inheritance to their collateral heirs. The appellant Joseph Rowan and others answered the bill, alleging that the lands, except a 40-acre tract, became the property of said Joseph Rowan by virtue of the last will and testament of Robert Rowan, deceased, and denying that the heirs at law of Alexander Rowan and McFarland Rowan had inherited the lands. The bill merely alleged ownership of the lands by the heirs at law, without setting up anything further, but on the hearing the record of a prior suit in equity respecting the title to the lands was offered and received in evidence without objection, by which the fee-simple title to the tracts of land in dispute was found by the circuit court of said Jackson county to be in said Alexander Rowan and McFarland Rowan. The court having found against the claim of Joseph Rowan and entered a decree in accordance with that finding, the defendants jointly and severally prayed and were allowed an appeal to this court, and the appeal was perfected by Joseph Rowan alone.

Robert Rowan owned the S. W. 1/4 of section 29, in township 10 S., range 1 W., and a tract of 1 1/2 acres in section 32. He died on January 17, 1879, leaving a last will and testament, by which he gave his widow, Ellen Rowan, a life estate in all of his real estate, but in describing the quarter section the words ‘southwest quarter’ were duplicated through a mistake of the scrivener, and the tract was described as the S. W. 1/4 of the S. W. 1/4. The testator intended to devise the N. 1/2 of the quarter section to his sons Joseph Rowan and Samuel Rowan subject to the life estate of the widow, and to devise the S. 1/2, together with the acre and a half in section 32, to his two sons Alexander Rowan and McFarland Rowan, but in each of the three paragraphs of the will making the devises the same mistake was made, and ‘southwest quarter’ was written twice, so as to describe only 40 acres of the quarter section. Substantially the same provision or condition was annexed to each devise to the sons, and the claim of Joseph was based on this provision following the devise to Alexander Rowan and McFarland Rowan: ‘And in case of the death of the said Alexander or McPharlin Rowan said described lands shall revert to Joseph and Samuel Rowan. In case they should die leaving widow or widows to the widow while she remains their widow or widows then to their heirs if any living.’ Joseph Rowan claimed title under this provisionby way of executory devise. In 1881 Ellen Rowan, the widow, Joseph Rowan, the appellant, and Alexander Rowan and McFarland Rowan, filed a bill to the March term of the Jackson circuit court alleging the mistake in the description of the S. W. 1/4 and praying the court to correct the same by expunging the second and superfluous ‘southwest quarter’ found in the description of the land; that the complainants might ‘have the legal as well as the equitable title to said lands vested in them according to the true intent, meaning and design of said testator,’ and for other and further relief, as the nature of the case might require. All of the persons interested or entitled to participate in the distribution of the estate of Robert Rowan were made parties and served with process. Some grandchildren were minors and answered the bill by their guardian ad litem. Certain adult defendants were defaulted, and the cause was referred to a master in chancery, who took the evidence and reported to the court recommending a decree in accordance with the prayer of the bill. At said March term, 1881, a decree was entered in that cause by the court finding that a mistake had been made in the description of the S. W. 1/4 of section 29 by the person who wrote the will by writing ‘southwest quarter’ more than once, and adjudging and decreeing that Alexander Rowan and McFarland Rowan by virtue of the will took and had a fee-simple title, as tenants in common, to the S. 1/2 of the S. W. 1/4 of said section and the one acre and a half in section 32, subject to the life estate of the widow, and perpetually enjoining all the other parties from setting up any claim or asserting any right, title, or interest whatever in or to any part of said lands as the heirs of Robert Rowan, deceased.

It is contended by the appellees that said decree is conclusive upon appellant as to the construction of the will of Robert Rowan, and also that, independent of the question of res judicata, the appellant Joseph Rowan, one of the complainants, having procured the court to give such construction to the will in 1881, and having never questioned it since, is now estopped to question such construction. If the circuit court had jurisdiction to construe the will, the decree construing it, which invested Alexander Rowan and McFarland Rowan with a fee-simple title to the lands in dispute, is conclusive upon all the parties to that suit and those claiming under them; and that is the question to be determined.

[1] A judgment or decree is not binding upon any one unless the court rendering the same had jurisdiction of the parties and the subject-matter of the cause. The court did have jurisdiction of the parties, and the appellant, who is disputing the binding effect of the decree, was one of the complainants. Jurisdiction of the subject-matter is the power to adjudge concerning the general question involved, and, if a bill states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches, and no error committed by the court can render the judgment void. If the court has jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. Such a judgment is binding on the parties and on every other court, unless reversed or annulled in a direct proceeding, and is not open to collateral attack. If there is a total want of jurisdiction in a court, its proceedings are an absolute nullity, and confer no right and afford no protection, but will be pronounced void when collaterally drawn in question. Buckmaster v. Carlin, 3 Scam. 104;Swiggart v. Harber, 4 Scam. 364,39 Am. Dec. 418;People v. Seelye, 146 Ill. 189, 32 N. E. 458;Clark v. People, 146 Ill. 348, 35 N. E. 60;O'Brien v. People, 216 Ill. 354, 75 N. E. 108,108 Am. St. Rep. 219;People v. Talmadge, 194 Ill. 67, 61 N. E. 1049.

[2] While jurisdiction in its proper sense means authority to hear and decide a cause, it is common to speak of jurisdictionin equity or the jurisdiction of a court of equity as not relating to the power of the court to hear and determine a cause, but as to whether it ought to assume the jurisdiction and hear and decide the cause. In Scott v. Whitlow, 20 Ill. 310, it was said that, although the decree of a court might not be void for want of jurisdiction and the court had power to make the decree it did, it was not a proper exercise of its chancery powers. And in Curtiss v. Brown, 29 Ill. 201, the court called attention to the confusion arising from the use of the word ‘jurisdiction’ as applied to courts of equity. The court said: ‘We often find the jurisdiction denied where the power exists but ought not to be exercised, and in this sense is the word ‘jurisdiction’ usually used when applied to courts of chancery. Where there is want of power the decree is void collaterally, but, where there is said to be a want of jurisdiction merely, it is only meant that it would be erroneous to exercise the power and the decree would be reversed on appeal. It means a want of equity and not a want of power.' Mr. Pomeroy, in his work on Equity Jurisprudence (volume 1, § 129) points out the fact that the term ‘equity jurisdiction’ is used in contradistinction to jurisdiction in general and to common-law jurisdiction in particular; that the term ‘jurisdiction,’ in the sense of power residing in the court, may be applied to courts of equity as well as to any other tribunals; that with this signification an equity court has no jurisdiction to try a criminal cause; that this strict meaning is not always given to the term ‘equity jurisdiction’ as it is ordinarily used; and that, when ordinarily speaking of the equity jurisdiction, we do not thereby refer to the general power inherent in a court to decide a controversy at all. In a note he says that the true meaning of ‘jurisdiction’ is so often misunderstood and the word is so often misapplied that he quotes a passage from an opinion in Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129, as a clear and convincing explanation of the matter. The author of the chapter on jurisdiction in the Encyclopedia of Pleading and Practice, after giving a correct definition of the word ‘jurisdiction,’ calls attention to the fact that there is perhaps no word in...