Rowand v. Carroll

• Citation: 1876 WL 9958,81 Ill. 224
• Parties: JOHN F. ROWAND et al.v.JOHN CARROLL et al.
• Decision Date: 31 January 1876
• Court: Supreme Court of Illinois

81 Ill. 224

1876 WL 9958 (Ill.)

JOHN F. ROWAND et al.

v.JOHN CARROLL et al.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the County Court of Edgar county; the Hon. GEO. K. LARKIN, Judge, presiding.

Messrs. HENRY & PENWELL, for the plaintiffs in error.

Messrs. MANN & CALHOUN, and Mr. E. S. TERRY, for the defendants in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a petition, filed in the county court of Edgar county, on the 6th day of July, 1864, by Benajah Rowand and Thomas L. Rowand, administrators, with the will annexed, of the estate of Edward Rowand, deceased, for the assignment of dower and the sale of lands to pay debts of the estate.

The petition set forth that the deceased left him surviving, Margaret Rowand as his widow, and the following named children: Mary Carroll intermarried with John Carroll, Clarissa Clemens intermarried with John Clemens, Benajah Rowand, William Rowand, Alexander Rowand, Amanda Brown intermarried with Robert Brown, Thomas L. Rowand, Edward M. Rowand, John F. Rowand, Isaac Rowand, Margaret J. Rowand, Mary E. Rowand, and Gustavus Rowand--the six latter being under fourteen years of age.

At the August term, 1864, a decree was entered finding the widow entitled to dower, and appointing commissioners for its assignment, who subsequently made their report assigning dower, which was approved; and afterward, at the same term, the lands described in the petition were ordered to be sold, those upon which the dower was assigned to be last sold. The sale was had October 10, 1864, the report of sale made and approved at the November term, 1865.

November 13, 1875, Edward M. Rowand, John F. Rowand, Isaac Rowand, Margaret J. Rowand, Mary E. Rowand, and Gustavus Rowand, sued out this writ of error. In the assignment of errors, the first two of the plaintiffs in error are represented as being of the respective ages of twenty-four and twenty-two years, and the rest as minors.

There was no personal service, but only publication of notice, as to these parties, in the court below, and it is objected that the court did not acquire jurisdiction of the person of the parties, because of the insufficiency of the affidavit of non-residence upon which the publication of notice was made.

Two objections are taken to the affidavit: First, that it should have been made by the administrators; and secondly, that it was made upon information and belief.

The form of the affidavit was:

“James A. Eads being duly sworn, on oath, says that he is attorney for said administrators; that Mary Carroll, John Carroll, Margaret Rowand, Clarissa Clemens, John B. Clemens, William Rowand, Amanda Brown, Robert Brown, Edward M. Rowand, John F. Rowand, Isaac Rowand, Margaret J. Rowand, Mary E. Rowand, and Gustavus Rowand, are not residents of the State of Illinois, as he is informed and believes.

JAMES A. EADS.”

The provision of the statute is: “Whenever any petitioner shall file in the office of the clerk of the court in which his petition is pending, an affidavit, showing that any defendant resides or hath gone out of this State, or on due inquiry can not be found, or is concealed within said State, so that process can not be served on him, or that the persons required to be made parties, or any of them, are unknown, the clerk shall cause a notice of the pending petition,” etc., to be published.

The statute is silent as to the person who shall make the affidavit, and the fact of the non-residence of the defendants can not be supposed as being peculiarly within the knowledge of the petitioner, but that it may as well be known to others as to himself. There is nothing in the first point of objection.

In Frink v. Flanagan, 1 Gilm. 35, an affidavit made in a replevin suit, by an agent of the plaintiff, that he believed the plaintiff was the owner of the property about to be replevied, was held to be insufficient. And in Dyer v. Flint, 21 Ill. 80, an affidavit in an attachment suit, made by the agent of the plaintiff, that he was informed and verily believed the defendant was indebted to the plaintiff in the amount specified, was adjudged to be insufficient. These decisions were upon the ground that the respective statutes in those cases required a positive statement of the ownership, and indebtedness, to be made in the affidavit.

There is a difference, in this respect, in the language of the statute here involved. Its language is, that the petitioner shall file “an affidavit showing that any defendant resides or hath gone out of this State.” It does not require that the affidavit shall contain a positive statement of the fact of nonresidence, etc., but that there shall be filed an affidavit showing such fact. An affidavit upon information and belief, is a mode of showing such fact, and does show it, in that mode.

We think...