Swift v. Allen

• Decision Date: 30 September 1870
• Citation: 1870 WL 6417,55 Ill. 303
• Parties: MILTON H. SWIFT et al.v.HENRY ALLEN.
• Court: Illinois Supreme Court

55 Ill. 303

1870 WL 6417 (Ill.)

MILTON H. SWIFT et al.

v.HENRY ALLEN.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of DeKalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

The opinion states the case.

Mr. R. L. DIVINE, for the appellants, insisted that a court has the power to amend its decree at a term subsequent to that at which it was rendered, and in matter of substance, citing Porter v. Vaughan, 22 Vt. 269; Bilanski v. The State, 3 Minn. 427; Burnett v. The State, 14 Texas, 455; Dumas v. Hunter, 30 Ala. 188; Sims v. Boynton, 32 Ala. 353; Farmer v. Wilson, 34 Ala. 75; Brady v. Beason, 6 Iredell, 425; The State v. King, 5 ib. 203; Galloway v. McKeithen, ib. 12; Fay v. Wenzell, 8 Cush. 315; Balch v. Shaw, 7 ib. 282; Ordroneaux v. Prady, 6 S. & R. 510; The Inhabitants of Limerick, etc. 18 Maine, (6 Shepley) 183; Chamberlain v. Crane, 4 N. H. 115; Frink v. Frink, 43 N. H. 508; King & Huston v. State Bank, 4 English, (Ark.) 185; Arrington v. Conrey et al. 17 Ark. 100; Close v. Gillespie, 3 Johns. 526; The President, etc. v. Seymour & Smith, 14 Johns. 219; McManus v. Richardson, 8 Blackf. 100; The State v. Hood, 3 ib. 352.

In O'Connor v. Mullen, 11 Ill. 57, more than three years after the judgment was rendered, the record was amended in a material respect, so as to make valid the judgment that would otherwise have been erroneous; and it was held that the court might properly allow this amendment on motion, but that it was error to do so without notice to the adverse party.

To similar effect are Mitcheltree v. Sparks, 1 Scam. 122; Hunter v. Sherman, 2 ib. 545; Duncan v. McAfee, 3 ib. 93.

In Frame v. Frame et al. 16 Ill. 155, it was held that the probate court might properly order its record to be extended so as to show a final settlement of the affairs of the administrator, seventeen years after the settlement was in fact made.

See also McCormick v. Wheeler, 36 Ill. 119; Cooley v. Scarlett, 38 Ill. 318; Means v. Means, 42 Ill. 51.

Mr. CHARLES KELLUM, for the appellee.

Either the court had the right to make the amendment on its own motion without notice to the parties, or the amendment does not change their rights. It is not denied that amendments in matter of form may be made at a subsequent term, but it is believed that under the practice in this State it can not be done except on notice. Cook v. Wood, 24 Ill. 295; Smith v. Wilson, 26 Ill. 188. Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of ejectment brought by the appellants. Both parties claimed under Levi Lee. The plaintiffs claimed under an attachment, judgment and execution against Lee; the defendant, under a conveyance from him, made before the attachment was levied. The plaintiff sought to impeach the title of the defendant, as having been made to defraud creditors. The defendant insisted, and the court held, that a former decree of the court, on the chancery side, rendered in a suit between the same parties brought for the purpose of setting aside defendant's title, was conclusive upon this question. By that decree the complainants' bill was dismissed, in the following words:

“And now come the parties, by their respective solicitors, and on hearing the bill herein, it is ordered by the court that said bill be dismissed.”

At a subsequent term this decree was amended, on motion, by adding these words:

“Upon the ground that a court of law is the proper forum in which to try and determine the matters in controversy in this suit.”

The question presented by this record is, the effect of this amendment.

It is conceded the decree, as originally made, would bar the plaintiffs herein from re-opening the question of fraud. It is claimed, however, that the amendment so changes the decree that it is to be considered as a decree dismissing the bill without prejudice. This would, no doubt, be a proper construction of the amendment, and its materiality is thus apparent. This brings us to the question of the power of the court to make it.

The only notice given to the defendants in the chancery suit, of the intention to move for an amendment of the decree, was a verbal notice to their solicitor, and a written notice addressed to the defendants, Lee and Webster, posted on the court house door, seven days before the motion was made. It is also claimed that Lee was...