Rabbitt v. Frank C. Weber & Co.

• Decision Date: 21 April 1921
• Docket Number: No. 13819.,13819.
• Citation: 130 N.E. 787,297 Ill. 491
• Court: Illinois Supreme Court
• Parties: RABBITT v. FRANK C. WEBER & CO. et al.

297 Ill. 491

130 N.E. 787

RABBITT

v.FRANK C. WEBER & CO. et al.

No. 13819.

Supreme Court of Illinois.

April 21, 1921.

Bill by James M. Rabbitt against Frank C. Weber & Co. and others. From decree dismissing the bill, complainant appeals.

Reversed and remanded, with directions.Appeal from Circuit Court, Cook County; George F. Rush, judge.

George B. Cohen, of Chicago (John T. Murray and Charles G. Hutchinson, both of Chicago, of counsel), for appellant.

Robert F. Kolb, Ernest H. Allen, and Samuel M. Myers, all of Chicago, for appellees.

CARTWRIGHT, C. J.

The appellant, James M. Rabbitt, filed in the circuit court of Cook county his bill of complaint against the appellees, Frank C. Weber & Co., a corporation, and John J. Ward, its attorney, praying the court to set aside a sale and deed to the attorney of lot 32, in block 5, of Murdock, James & Company's Archer Avenue addition in Chicago, at 4950 Archer avenue, under a judgment in attachment against the property of Margaret Fischer, and to enjoin the defendants from interfering with the property or the possession of the same. A demurrer to the bill was sustained and an amended bill was filed, to which the court again sustained a demurrer. A second amended bill was filed, and the defendants having demurrer to it, the demurrer was sustained. After the third attempt to state facts entitling him to the relief prayed for, the complainant elected not to make a further effort by amendment, and the bill was dismissed for want of equity, at his costs, and he appealed.

The facts alleged in the bill and admitted by the demurrer to be true for the purpose of testing the question whether, if proved, they would entitled the complainant to relief, are as follows: Margaret Fischer was the owner of the lot, which was improved by a brick building, on the ground floor of which there was a storeroom, with living rooms in the rear, and two flats in the second story, occupied by tenants. On December 5, 1918, an affidavit for a writ of attachment was filed in the municipal court, signed and sworn to by the attorney, setting forth that Herman O. Fischer and Margaret Fischer were indebted to Frank C. Weber & Co. in the sum of $179.30 for goods, wares, and merchandise sold and delivered; that Herman O. Fischer and Margaret Fischer had within two years last past fraudulently conveyed or assigned their effects, or a part thereof, so to hinder and delay their creditors, and that they had within two years last past fraldulently concealed or disposed of their property so as to hinder and delay their creditors. The affidavit stated nothing as to the place of residence of either of the defendants, but was wholly silent as to facts concerning the same required by the statute as a basis for the writ. It did not state that the defendants, or either of them, were not residents of the state or had departed from the state or on due inquiry, could not be found, or were concealed, within the state so that process could not be served upon him or her, nor that the place of residence of the defendants, or either of them, was not known, or upon diligent inquiry the affiant had not been able to ascertain the same. A writ of attachment was issued out of the municipal court returnable on December[297 Ill. 494]6, 1918, and the bailiff levied the writ on the lot and filed a certificate of levy in the office of the recorder of deeds of Cook county. He made a return of the levy, and that upon due inquiry he was unable to find the defendants in Chicago. The defendants lived on the north side in Chicago, and any inquiry at the lot or building at 4950 Archer avenue would have made known their place of residence. On January 6, 1919, the bailiff filed an attachment notice notifying the defendants to appear on January 27, 1919, and certified that he had posted three copies of the notice on January 9, 1919, and had mailed a copy of the notice addressed to H. O. Fischer and Margaret Fischer at 4950 Archer avenue, Chicago. The defendants did not live at that place, and never received a notice. On January 27, 1919, judgment for $179.30 and costs were entered by default, and a special execution was ordered. On April 17, 1919, Margaret Fischer filed her motion to vacate the judgment, based on her affidavit that the affidavit of the attorney was false; that she never had any business dealings with Frank C. Weber & Co., never purchased any goods, wares, or merchandise from it and never had any account with that company; that she was not, and never had been, indebted to it; that there was no service of summons on her or notice to her; that she had lived continuously in Chicago and never secreted herself or attempted to avoid the service of summons; that she had no knowledge of the pendency of the suit until shortly before making the motion; that she had not within two years fraudulently conveyed or assigned her effects, or any part thereof, with the intention of hindering or delaying her creditors, and had not at any time concealed or disposed of her property so as to hinder or delay her creditors. The court overruled the motion, and assigned as a reason that more than 30 days had elapsed, and the court was without jurisdiction to act. A special execution was issued against the lot, and the bailiff filed a certificate of levy on February[297 Ill. 495]17, 1919, and advertised the property in the National Corporation Reporter for a sale on June 21, 1920, at 10 o'clock. On May 6, 1919, Margaret Fischer sold the lot to the complainant, and conveyed it to him by deed. On June 21, 1920, the bailiff sold the property to the attorney for the plaintiffs for $229.15, and the sale was made at 9 o'clock, although advertised for 10 o'clock. The bailiff executed a deed to the attorney on the day of the sale, and it was recorded in the recorded's office of Cook county. The property was worth more than $5,000 and was incumbered for about $2,600. The attorney to whom the deed was made served notice upon the complainant's tenants, directing them to pay rent to him, and threatening to evict and dispossess them if they failed to do so, and was attempting to exercise the rights of an owner. The bill charged as a matter of law, that the judgment, sale, and deed were void and of no force or effect because in violation of constitutional rights, as an attempt to deprive the owner of property without due process of law.

It will be seen that many of the facts stated in the bill, such as the falsity of the affidavit and the existence of a meritorious defense, would be available only to Margaret Fischer, but if the municipal court had no jurisdiction to render the judgment, it and all proceedings under it are utterly void, and their validity may be disputed collaterally as a basis of title by any person having an interest in the subject-matter. Goudy v. Hall, 30 Ill. 109;Miller v. Handy, 40 Ill. 448;Campbell v. McChan, 41 Ill. 45;Clark v. Thompson, 47 Ill. 25, 95 Am. Dec. 457;Huls v. Buntin, 47 Ill. 396. The complainant, having purchased the property, had a right to question the jurisdiction of the municipal court, and his bill involved a construction of the Constitution. A freehold is also involved in any case where it is the purpose of the suit to set aside a sale of real estate. McCallum v. Chicago Title & Trust Co., 203 Ill. 142, 67 N. E. 823;Barnes v. Henshaw, 226 Ill. 605, 80 N. E. 1076;Bondurant v. Bondurant, 251 Ill. 324, 96 N. E. 306, Ann. Cas. 1914D, 18.

Section 2 of the Bill of Rights provides that no person shall be deprived of life, liberty, or property without due process of law, under which no citizen can be deprived of property without due notice and an opportunity to be heard in defense and enforcement of his right. This court expressed the principle in Haywood v. Collins, 60 Ill. 328, by saying that the very...