Spellmyer v. Gaff

• Citation: 1 N.E. 170,112 Ill. 29
• Parties: SPELLMYER and others v. GAFF.
• Decision Date: 17 November 1884
• Court: Supreme Court of Illinois

112 Ill. 29

1 N.E. 170

SPELLMYER and others

v.GAFF.

Supreme Court of Illinois.

Filed November 17, 1884.

Appeal from appellate court, Second district.

Wallace & Terry

, for appellants.

C. C. Strawn, for appellee.

SCHOLFIELD, J.

On the thirty-forst of August, 1882, James H. Gaff, as ex-sheriff of Livingston county, presented his motion to the circuit court of that county for leave to amend the return made by him, while sheriff of the county, on a certain summons. Those interested in opposition to the motion were made defendants, and appeared and resisted its allowance.

It is conceded by both sides to be true, namely, that William F. Spellmyer, on the fourth of February, 1864, executed a mortgage upon an 80 and a 40 acre tract of land, specifically described in the record, situated in Livingston county, to secure the payment of his promissory note to William D. Vansant. Soon afterwards, Spellmyer died intestate, leaving a widow, Sarah, and three children,-John, Laura, and Caroline,-his heirs at law. After the death of Spellmyer, his widow, Sarah intermarried with James Warner, and he thereafter risided with her and the children of Spellmyer, on the mortgaged land, as the head of the family, and cultivated the land for a support for such family for several years. While he was thus residing with them on the mortgaged land, as the head of the family, (in December, 1866,) the note secured by the mortgage not having been paid, Vansant filed his bill to foreclose the mortgage, in the Livingston circuit court, making the said James Warner, the said Sarah, his wife, and the said John, Laura, and Caroline Spellmyer, defendants.Summons was thereupon issued in due form, and placed in the hands of James H. Gaff, then sheriff of Livingston county, to execute. He returned this summons on the twenty-second of December, 1866, with this indorsement thereon:

‘I have executed this writ by reading the same to and leaving a reue copy of the same with James Warner and Sarah Warner, and leaving a true copy of the same at the regular place of abode for each of the withinnamed John Spellmyer, Laura Spellmyer, and Caroline Spellmyer, with a white person over ten years of age, and explaining to him the contents of the same, this twenty-second day of December, 1866.

‘J. H. GAFF, Sheriff of Livingston County, Ill.’

On the thirtieth of January, 1867, the circuit court of Livingston county rendered a decree in the cause, taking an account and determining the amount due on the mortgage, and directing a sale of the mortgaged property for the payment of that amount, etc., and on the twentyseventh of April, 1867, the mortgaged property was sold pursuant thereto by the master in chancery, and F. Plumb became its purchaser. On the eleventh of January, 1868, Plumb assigned and transferred his certificate of purchase to said Sarah Warner, and on the seventeenth of August, 1868, the master in chancery executed a deed of the property to her. On the twelfth of October, 1878, she conveyed the lands to Albert Lawrence, Jr., and O. P. Bourland, and on the thirteenth of November, 1879, Lawrence conveyed his interest therein to Edgar Cook. On the ninth of November, 1880, Cook and Bourland conveyed the 40-acre tract to F. Kennedy, and on the eighteenth of May, 1881, they conveyed the 80-acre tract to A. C. Fosdick. On the fifth of April, 1882, Fosdick conveyed this tract to W. V. Haynes, H. P. Gordon, and W. G. Haynes.

It was offered to introduce Gaff and other persons, whose affidavits had been filed with the motion, and examine them orally, as witnesses, touching the question of service, and allow the defendants opportunity to cross-examine them severally; but the defendants waived this, and consented that the affidavits might be read and considered, for the purposes of the motion, as the evidence of such persons, respectively. The respect wherein leave was asked to amend the return was, to state that the true copy of the summons returned as left ‘at the regular place of abode for each of the within named, John Spellmyer, Laura Spellmyer, and Caroline Spellmyer, with a white person over 10 years of age, and explaining to him the contents,’ was in fact left for each of them, at their usual place of abode, with the said James Warner, a white person, (who was the head of the family of said Spellmyer,) over the age of 10 years, and residing with them, and informing him of the contents. The circuit court allowed the amendment to be made, and this, on appeal to the appellate court for the First district, was affirmed.

The appellants do not object that the evidence is insufficient to warrant the action of the circuit court, and there is not the slightest ground for objection in that regard. Gaff shows that he thoroughly recollects what he did in making service of the writ, and gives reasons which are entirely satisfactory why he should have such recollection. He is corroborated, in all respects, by the testimony of Warner, and they are both, to a considerable extent, corroborated by others. That the service was, in fact, properly made, there can be no reasonable doubt. The only objection urged to the correction of the...