Tagert v. Fletcher
| Decision Date | 20 February 1908 |
| Parties | TAGERT v. FLETCHER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Cook County; Lockwood Honore, Judge.
Suit by Alfred N. Tagert against Alonzo D. Fletcher and others. From a decree for complainant, defendants bring error. Reversed and remanded, with directions.
Paul Irose and Wiley W. Mills, for plaintiffs in error.
William H. Feindt, Jr., for defendant in error.
Alfred N. Tagert filed his bill in the circuit court of Cook county to set aside the probate of the supposed will of Lucy A. Tagert on the ground of her mental incapacity, and that it was procured by fraud and undue influence, and was not properly executed; to enforce the specific performance of an alleged contract by the said Lucy A. Tagert to make a will in favor of complainant, giving him half of her estate; to partition real estate, and for an accounting for money and property received from various sources by Alonzo D. Fletcher, who was the sole devisee, under the will, of all the testatrix's property. He and all the other heirs of Lucy A. Tagert were made defendants to the bill. On the filing of the bill on December 3, 1906, a motion for a temporary injunction against the disposition of the real and personal property involved was made, and a stipulation was filed, signed by the solicitors of all the parties, to continue the motion until December 10th, and thereupon an order was entered in open court for such continuance. A stipulation for a further continuance was made and filed, but no further order was made until January 7, 1907, when Alonzo D. Fletcher was defaulted, all the other defendants having answered admitting the allegations of the bill, and on January 19, 1907, a decree was rendered setting aside the probate of the will, declaring that complainant was entitled to a specific performance of the agreement to make a will in his favor, directing a partition of the real estate, and referring the cause to the master in chancery to state an account of all the dealings and transactions between the complainant and the defendants. Alonzo D. Fletcher has sued out a writ of error to review these proceedings.
No summons was issued; and it is insisted that the court did not acquire jurisdiction of the person of the plaintiff in error. The object of process is to secure the appearance of the party, and process is unnecessary if the party appears voluntarily. Any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance. 3 Cyc. 504. A stipulation for a continuance constitutes a general appearance. Id. 510. When the plaintiff in error filed a stipulation for the continuance of the motion for a preliminaryinjunction, he recognized the jurisdiction of the court to proceed in the cause, and this act amounted to a general appearance.
A part of the real estate sought to be partitioned is described as ‘966 West Lake street.’ No other description is given. It would, perhaps, be possible to locate, by other details not mentioned, the tract intended to be described, but the means of doing so do not appear in the record. Section 5 of the partition act (Hurd's Rev. St. 1905, c. 106) requires that a bill for partition must particularly describe the premises sought to be divided and set forth the interests of all parties interested therein. This is necessary to enable the commissioners to ascertain the land to be divided and to set off to each tenant in common his share, and the description must necessarily be so certain as not to leave the matter open to be determined by evidence, after decree rendered, as to what land is affected. ‘966 West Lake street,’ so far as this record...
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Dibble v. Winter
...properly involved in a bill brought under the statute to contest a will. Hollenbeck v. Cook, 180 Ill. 65, 54 N. E. 154;Tagert v. Fletcher, 232 Ill. 197, 83 N. E. 805;Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256,122 Am. St. Rep. 169;Calkins v. Calkins, 229 Ill. 68, 82 N. E. 242. In Keist......
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Robertson v. Sollitt, 84-2448
...that a stipulation constitutes a general appearance (People v. Estep (1955), 6 Ill.2d 127, 128, 126 N.E.2d 637; Tagert v. Fletcher (1908), 232 Ill. 197, 198-99, 83 N.E. 805; cf., Mauro v. Peterson (1984), 122 Ill.App.3d 466, 468, 77 Ill.Dec. 941, 461 N.E.2d 564), and, in particular, that a ......
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People v. Estep
... ... 3 Cyc. 504. A stipulation for a continuance constitutes a general appearance.' Tagert v. Fletcher, 232 Ill. 197, 198, 83 N.E. 805; Kelly v. Brown, 310 Ill. 319, 141 N.E. 743; Miles v. Goodwin, 35 Ill. 53. The defendants here ... ...
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Stephens v. Collison
... ... Fletcher's Eq. Pl. & Pr. 113. In accordance with the aim of equity to administer complete relief in one suit, a bill is not multifarious so long as it seeks ... Calkins, 229 Ill. 68, 82 N. E. 242, and Tagert v. Fletcher, 232 Ill. 197, 83 N. E. 805. That the jurisdiction of a court of equity to entertain a bill to contest a will is derived from the statute ... ...