Strean v. Lloyd

• Citation: 21 N.E. 533,128 Ill. 493
• Parties: STREAN et al. v. LLOYD et al.
• Decision Date: 16 May 1889
• Court: Illinois Supreme Court

128 Ill. 493

21 N.E. 533

STREAN et al.

v.LLOYD et al.

Supreme Court of Illinois.

May 16, 1889.

Appeal from circuit court, Iroquois county; N. J. PILLSBURY, Judge.

The Illinois practice act, § 23, (Rev. St. 1874, p. 778,) provides that amendments may be allowed before final judgment in civil cases, on such terms as are just and reasonable, introducing necessary parties plaintiff or defendant, changing the form of action, and in any matter of form or substance which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, etc.

Kay & Evans, for appellants.

Wm. J. Ammen, (Geo. F. Harding, of counsel,) for appellees.

SCHOLFIELD, J.

This was ejectment in the circuit court of Iroquois county by Mary Louise Lloyd, Josephine Walker, and Carrie Walker, for the recovery of the N. W. 1/4 and the W. 1/2 of the S. W. 1/4 of section 27, in township 25 N., range 12 E. of the third P. M., in Iroquois county. Judgment was rendered for the plaintiff for the lands described in fee, and the defendants appeal to this court.

It is objected that the court below erred in not dismissing the suit, because the plaintiffs' attorney failed, in response to a rule of court laid upon him to that effect, to produce authority for commencing the action in the name of the plaintiffs therein. Under the statute, any written recognition of the authority to commence the suit, duly proved as therein provided, shall be sufficient presumptive evidence of such authority. Rev. St. 1874, p. 445, § 16. There was here produced such written recognition of authority, and there was nothing to disprove the effect thus given it by the statute. It is not, as counsel seem to suppose, evidence merely that there was authority, when that recognition in writing was executed, to prosecute the suit, but the statute makes it presumptive evidence that authority existed to commence the suit at the time it was commenced. The name of the county of Cook is inserted as the place where suit is to be prosecuted, but this is evidently a mere clerical error. Suit could only be commenced in the county where the land lies,-in Iroquois county,-and authority to prosecute the suit necessarily implies authority to prosecute it there. The words ‘Cook county’ would be rejected as repugnant and meaningless.

We are also of opinion that the objection urged on account of the court allowing the plaintiffs to amend the declaration by changing parties and correcting the description of the land sued for is untenable. The amendments made were clearly within the power conferred upon the court by section 23 of the practice act, (Rev. St. 1874, p. 778.)

It is unnecessary to consider other questions of law presented by objections discussed in the printed arguments before us, since they may not arise upon the second trial of the case. The judgment below...