Oetgen v. Ross

• Decision Date: 31 January 1868
• Citation: 95 Am.Dec. 468,1868 WL 4949,47 Ill. 142
• Parties: WILLIAM OETGENv.JOHN W. ROSS et al.
• Court: Illinois Supreme Court

47 Ill. 142

1868 WL 4949 (Ill.)

95 Am.Dec. 468

WILLIAM OETGEN

v.JOHN W. ROSS et al.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cass county; the Hon. JAMES HARRIOTT, Judge, presiding.

The opinion states the case.

Mr. H. B. MCCLURE and Mr. G. POLLARD, for the appellant.

Mr. M. MCCONNEL, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

At the March term, 1860, of the Circuit Court of Cass county, John W. Ross and Sarah A. Ross recovered a judgment by default, against Louis Zimmer, in an action of ejectment. At the March term, 1861, Oetgen appeared as the landlord of Zimmer, and, on his application, the judgment by default was set aside, and a plea was filed in his name and that of Zimmer. At the September term, 1864, the cause was again tried, and a judgment rendered for the plaintiffs. The defendants brought the record to this court, and cross-errors having been assigned, by consent, it was held that the judgment by default had been improperly set aside, and the order setting it aside was reversed. Oetgen v. Ross, 36 Ill. 335. The judgment on the trial was also reversed, the case not having been properly before the court; but before the decision of this court was announced, this judgment of the September term, 1864, was vacated under the statute, by payment of costs. That judgment thus ceased to exist, independently of the action of this court. The cause having been remanded from this to the circuit court, was re-docketed against Oetgen, as landlord, and Zimmer, as tenant, and a motion was made for a writ of possession on the judgment by default. Oetgen resisted the motion, but it was allowed, and he prayed an appeal, which was granted.

There could be no objection to a writ of possession against Zimmer, but he has not been in possession since 1860, and the actual question argued by counsel is, the right to evict Oetgen upon the judgment by default obtained against his tenant, Zimmer, at the March term, 1860. It appears Zimmer gave Oetgen no notice of the pendency of the ejectment, and no writ of possession has ever been issued on the judgment.

A person entering under a defendant in ejectment, after the commencement of the suit, must of course be considered as taking and holding the possession, subject to the judgment to be rendered in the suit, though not made a party to it. In no other way could the action of ejectment, or any possessory action be made effective. The person thus entering can not complain that he is evicted without being brought into court, because, in entering under the defendant, he takes only his rights, and can defend in his name. But a landlord who resumes possession of the demised premises, after the commencement of an ejectment against his tenant, the term having expired, can not be said to hold under his own tenant. Sections 29 and 31, of our ejectment act, make the judgment conclusive only as against persons claiming under either party by title accruing after the commencement of the suit. This language cannot apply to a landlord taking possession after the lease of his tenant has expired. Neither his title nor possession has accrued since the commencement of the suit.

What then should be the rule in regard to landlords? The statute requires a tenant sued in ejectment to give immediate notice to his landlord, under a penalty for not doing so. On the receipt of such notice, the landlord can appear and defend in the name of the tenant, or can have himself made a co-defendant. Where a landlord has been thus notified by his tenant, or otherwise, of the pendency of the suit, and has an opportunity to defend, he must be held to be concluded by a judgment for the plaintiff, and liable to be evicted if the tenant has surrendered the possession to him, though the judgment may have been only against the tenant, in name. But this liability to eviction under such a judgment, proceeds, not from the idea that the landlord is in possession by a right derived from his own tenant, but from the fact that the action of ejectment must be brought against the person in actual possession,...