Morris v. Hogle

• Decision Date: 30 April 1865
• Parties: DINAH MORRIS et al.v.MICHAEL HOGLE et al.
• Court: Illinois Supreme Court

37 Ill. 150

1865 WL 2798 (Ill.)

87 Am.Dec. 243

DINAH MORRIS et al.

v.MICHAEL HOGLE et al.

Supreme Court of Illinois.

April Term, 1865.

WRIT OF ERROR to the Circuit Court of Iroquois county; Hon. CHAS. R. SHAW, J.

Bill filed by Dinah Morris and others, complainants, to set aside a sale of real estate made by an executor on petition to the Probate Court. Decree for complainants. The facts are fully stated in the opinion.

JOHN CLARK, for plaintiffs in error.

GEORGE B. JOINER and JAMES FLETCHER, for defendants in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the court:

The bill in this case was filed for the purpose of cancelling a sale and conveyance made by an executor, under a decree of the County Court of Iroquois county, as well as subsequent conveyances of the land. The bill makes the executor, and the persons to whom the subsequent conveyances had been made, parties defendant. On the hearing, the prayer of the bill was granted, and all of the conveyances, in the chain of title from the executor, were set aside and cancelled, and the complainants restored to their former rights in the lands.

In this case, the main question is, whether the County Court had jurisdiction of the parties, as well as of the subject matter of the suit. In all judicial proceedings, to render the judgment or decree binding upon parties, the court must be invested with jurisdiction. And if the parties are not before the court, there can be no power to bind them, by decree or otherwise. A defendant must have notice of the pendency of the proceeding, and a reasonable opportunity to be heard in defense of his rights, before they can be affected by the decree. The court must, likewise, have jurisdiction of the subject of litigation, or the power to adjudicate and determine the question in dispute will be wanting. If the court lacks such jurisdiction, its proceedings are void, and binding upon no person; but may be questioned in any proceeding, whether direct or collateral.

This bill alleges that the heirs had no notice of the application of the executor to the County Court for a license to sell the real estate of the testator, for the payment of debts. The proceedings on that application were read in evidence on the hearing, from which it appears that the executor gave notice in a newspaper that he would apply at the December term, 1854, of the County Court for leave to sell the lands of the testator. It also appears that the petition was not filed until the February term, 1855, at which time an order of sale was rendered in accordance with the prayer of the petition. It nowhere appears that any notice was given, by publication, or was served upon the heirs, that an application would be made at the February term; but it was admitted on the hearing that no other notice was given than that the application would be made to the December term. It was likewise proved that no petition was filed at the December term by the executor.

In the case of Turney v. Turney, 24 Ill., 625, it was held that where an administrator fails to make application at the term to which he has given notice, he cannot, without a new notice, apply and procure an order of sale at a subsequent term. That, failing to file his petition at the term to which he gave notice to the heirs to appear, the suit thereby became abated, and the parties in interest must be again brought into court before any steps can be taken to affect their rights. If the suit is abated, the parties will not afterwards be in court for any purpose until again served, and the court cannot have jurisdiction of the persons of the defendants to render a valid decree. Again, in the case of Pardon v....