Rauh v. Ritchie
| Decision Date | 30 April 1878 |
| Parties | STEPHANI RAUH, Executrix, etc.v.WILLIAM C. RITCHIE, Executor, etc. |
| Court | United States Appellate Court of Illinois |
Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
Mr. Horace G. Lunt and Mr. Adolph Moses, for plaintiff in error; contending that proceedings by distress for rent abated upon the death of the tenant, cited Rev. Stat. 659; Rev. Stat. 97; Rev. Stat. 126; Davis v. Shapleigh et al. 19 Ill. 386; Tidd's Prac. 1,024; Lahey v. Brady, 1 Daly, 443.
That the amendment of judgment without notice was void: Swift v. Allen, 55 Ill. 303; O'Connor v. Mullen, 11 Ill. 57; Sears v. Low, 2 Gilm. 281; Coughran v. Gutchens, 18 Ill. 390.
That special execution cannot issue after the property has been released by bond: Rev. Stat. 660.
That the lien of the landlord upon the property became lost upon the giving of a bond to release it: Speer v. Skinner, 35 Ill. 282.
Messrs. Hutchinson & Luff, for defendants in error; argued that proceedings by distress should be governed by the same rules of practice as are provided in attachment cases: Rev. Stat. 660, § 20; Rev. Stat. 153, § 3; Davis v. Shapleigh, 19 Ill. 386.
That the action survived and could be maintained against the executrix: Rev. Stat. 269, § 1; Braithwaite v. Cooksey, 1 H. Bl. 465; Penny v. Little, 3 Scam. 301.
The mistake in entering the judgment was a mere clerical error, and amendable without notice: Rev. Stat. 137, §§ 2-7; Mitcheltree v. Sparks, 1 Scam. 122; Duncan v. McAfee, 3 Scam. 93; Sheppard v. Wilson, 6 How. 273; Balch v. Shaw, 7 Cush. 282; Galloway v. McKeithen, 5 Ired. 12; Smith v. Branch Bank, 5 Ala. 26; Cook v. Wood, 24 Ill. 295.
The error in the form of the judgment may be corrected, and the proper judgment entered in the Appellate Court: Albee v. Wachter, 74 Ill. 173; Yarborough v. Scott, 5 Ala. 221; Kent v. Lyles, 7 Gill. & J. 73.
On the 2d day of March, 1874, Henry Ritchie, the testator of the defendants in error, as the landlord of John C. Rauh, the testator of the plaintiff in error, caused a distress warrant to be issued, and levied on the goods and chattels of said Rauh. The distress warrant, together with an inventory of the property levied upon, was filed in the Superior Court; summons to the tenant was duly issued and served, and the property distrained was afterwards released, by the tenant entering into bond with sureties as required by the statute.
Pending the proceedings Rauh died, and upon suggestion of his death on the record, it was ordered that the suit be prosecuted against Stephani Rauh, his executrix. Summons against the executrix was thereupon issued and duly served, and afterwards, on the first day of June, 1875, the cause came on for trial before the court without a jury, and judgment was rendered in favor of the plaintiff for $235 and costs.
Among the errors assigned is the order of the court, entered upon suggestion of the death of the tenant, permitting the suit to be prosecuted against his executrix.
It is insisted that a distress for rent does not survive the death of a tenant dying pendente lite, and that consequently the proceedings were abated and could not be prosecuted against the personal representatives of the tenant.
We are referred to no authority supporting the doctrine here contended for, and in the absence of authority, it would seem to us that, upon principle, a proceeding against a tenant for the collection of rent, whether it be by the common law action of covenant, debt or assumpsit, or by distress, survives upon the death of the tenant, and may be prosecuted against his executor or administrator.
But we think this question, if otherwise doubtful, is settled by statute. Chapter 80, of the Revised Statutes, after providing in section 16, as to the property liable to seizure upon a distress warrant; in section 17, for the return of the warrant, and the making and filing of an inventory of the property levied upon; in section 18, for the issuing and return of summons to the tenant, and in section 19 for constructive service by publication of notice, in case of the non-residence of the tenant, provides in section 20 that “the suit shall thereafter proceed in the same manner as in case of attachment before such court or justice of the peace.” By this provision, the rules of practice applicable to proceedings by attachment are adopted, and made applicable to proceedings against a tenant by distress warrant.
By section 3 of the act in regard to attachments in courts of record (R. S. 1874, p. 155), it is provided that “heirs, executors and administrators of deceased defendants shall be subject to the provisions of this act in all cases in which it may be applicable to them.” In Davis v. Day, 19 Ill. 386, it was held that under this provision of the Attachment Act, an attachment proceeding does not abate by the death of the defendant. We think there was no error in allowing the suit to be prosecuted to final judgment against the executrix of the deceased tenant.
It appears, that notwithstanding the substitution of the executrix for the deceased tenant, as party defendant, the clerk of the court below in entering up the judgment, by mistake, overlooked the change of parties, and entitled the judgment order in a suit of “Henry Ritchie v. John C. Rauh,” and the judgment as originally entered was, in form, a judgment against John C. Rauh.
The judgment thus entered was manifestly erroneous, and until put in proper form, it gave the plaintiff no rights as against the executrix of the defendant.
On the 12th day of December, 1876, nearly eighteen months after the entry of the...
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