Thomas v. the People

• Citation: 1883 WL 10330,107 Ill. 517,47 Am.Rep. 458
• Parties: CHARLES W. THOMAS et al.v.THE PEOPLE, for use of John Joiner.
• Decision Date: 30 November 1883
• Court: Illinois Supreme Court

107 Ill. 517

1883 WL 10330 (Ill.)

47 Am.Rep. 458

CHARLES W. THOMAS et al.

v.THE PEOPLE, for use of John Joiner.

Supreme Court of Illinois.

Filed at Mt. Vernon May 7, 1883.Rehearing denied November Term, 1883.

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

Mr. CHARLES W. THOMAS, for the appellants:

The probate court had authority to hear evidence and determine whether the facts alleged in an application for the appointment of an administrator were true or untrue, (Gross' Stat. 1871, p. 808, sec. 71,) and having such power, its decision upon such an application can not be attacked collaterally. Roderigas v. East River Savings Institution, 63 N. Y. 460; Wight v. Wallbaum, 39 Ill. 563.

In no case cited by appellee was there any statute conferring discretionary power upon the probate court. The statutes in those cases made the fact of death jurisdictional, and the principle of those cases was denied by this court in Wight v. Wallbaum, supra. But in this State the law is established, by a long and unbroken line of decisions, that in proceedings like this, jurisdiction does not depend upon the existence or non-existence of any particular fact alleged in the application, but the making of the application gives the court jurisdiction to investigate and decide. Young v. Lorain, 11 Ill. 624; Fitzgibbon v. Lake, 29 Id. 165; Stow v. Kimble, 28 Id. 93; Mulford v. Stalzenbach, 46 Id. 303; Hobson v. Ewan, 62 Id. 146; Chicago, Burlington and Quincy R. R. Co. v. Chamberlain, 84 Id. 333; Galena and Chicago Union R. R. Co. v. Pound, 22 Id. 399; Dodge v. Cole, 97 Id. 338. And a decision once made by a court, which is duly set in motion, can not be attacked collaterally, no matter how absurd it may be. It may disregard, misconstrue, and even disobey, the plain provision of the law, but it must nevertheless stand unimpeached in every collateral inquiry. Young v. Lorain, 11 Ill. 624; Grignon's Lessee v. Astor, 2 How. 319.

The appointment of an administrator is in the nature of a proceeding in rem, (Freeman on Judgments, sec. 607,) and in such proceedings the court acquires jurisdiction in a manner different from that in which jurisdiction is acquired in proceedings in personam. Grignon's Lessee v. Astor, 2 How. 319.

In Illinois the presumption of life ceases at the end of seven years from the time one was last heard from, and the presumption of death takes its place. This presumption of death is a presumption of law, and one upon which courts may act. ( Whiting v. Nicholl, 46 Ill. 230.) And under this decision the presumption is not mere evidence,--it is a presumption of law such as is defined by Best in his work on Evidence, sec. 304.

Public policy and necessity require that rights depending upon the death of persons long absent and not heard from, should be settled by some definite rule, regardless, to some extent, of private rights. Whiting v. Nicholl, 46 Ill. 230; Freeman on Judgments, sec. 607.

Messrs. WILDERMAN & HAMILL, and Mr. HENRY M. NEEDLES, for the appellee:

No power or jurisdiction is committed by law to the probate court to grant administration upon the estate of a living person, and such administration is void. Const. 1870, art. 6, sec. 18; Griffith v. Frazier, 8 Cranch, 9; Jochumsen v. Suffolk Bank, 3 Allen, 87; Melia v. Simmons, 45 Wis. 334; D'Arusment v. Jones, 4Lea, 251; Devlin v. Commonwealth, 14 Pa. 795; Stephenson v. Superior Court, 15 Cal. 140; Roderigas v. East River Savings Institution, 76 N. Y. 316; Lavin v. Emigrant Industrial Savings Bank, 9 U. S. 541; McPherson v. Cunleff, 11 S. & R. 422; Allen v. Dundas, 3 Term Rep. 123; Appeal of Peebles, 15 S. & R. 42; Bolton v. Jacks, 6 Rob. 190; Duncan v. Stewart, 25 Ala. 408; Morgan v. Dodge, 44 N. H. 259; Fisk v. Norval, 9 Texas, 18; Wales v. Willard, 2 Mass. 120; Freeman on Judgments, (3d ed.) sec. 319a.

If the appointment of an administrator is a proceeding in rem, or in the nature of a proceeding in rem, the jurisdictional fact of death must actually exist, or the jurisdiction fails and the proceeding is void. Munroe v. The People, 102 Ill. 406; Thompson v. Whitman, 18 Wall. 457; Rose v. Himely, 4 Cranch, 241; Wheelwright v. Depeyster, 1 Johns. 471; DArusment v. Jones, 4 Lea, 251; Freeman on Judgments, (3d ed.) sec. 319a. A person, while a citizen and resident of one State, went into another State and instituted proceedings for a divorce, and the record showed the existence of the jurisdictional fact of residence in the State of the forum; but it was held, the actual fact being shown by evidence aliunde that such person was never a resident of the State where the decree was rendered, that the decree was void, and not entitled to “faith and credit.” Sewall v. Sewall, 122 Mass. 156; The People v. Dawell, 25 Mich. 247; Hoffman v. Hoffman, 46 N. Y. 30; Hood v. The State, 56 Ind. 263; Gettys v. Gettys, 3 Lea, 260.

Where a court or judicial officer assumes to hear and determine a matter not committed to it or him by the law, the proceeding is void. Munroe v. The People, 102 Ill. 406; Griffith v. Frazier, 8 Cranch, 23; Stephenson v. Superior Court, 15 Rep. 140; Melia v. Simmons, 45 Wis. 334.

It is axiomatic in American jurisprudence that there can not be a de facto officer unless there be a de jure office,--in other words, there can not be such a thing as a de facto office. Hildreth v. McIntire, 1 J. J. Marsh. 206; Stephens v. The People, 89 Ill. 337; 5 Wait's Actions and Defences, 7.

It results, that even if the rule as to de facto officers applies to administrators, unless Joiner was dead there was no estate to administer, and if there was no estate to administer there could not be an administrator, de facto or de jure. Roderigas v. East River Savings Institution, 76 N. Y. 316; Allen v. Dundas, 3 Term Rep. 123; Griffith v. Frazier, 8 Cranch, 9; Munroe v. The People, 102 Ill. 406.

To so construe the statute cited by appellants as to render the granting of letters of administration upon the estate of a living person binding upon such person, is to render it unconstitutional. Const. 1870, art. 6, sec. 18; Lavin v. Emigrant Industrial Savings Bank, 9 U. S. 541; Gilmore v. Sapp, 100 Ill. 297; Campbell v. Campbell, 63 Id. 462. Mr. JUSTICE MULKEY delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county for the sum of $703.87, in favor of the People of the State of Illinois, for the use of John Joiner, and against Charles W. Thomas, the appellant, and others, on his official bond as late master in chancery of St. Clair county.

It appears that after the execution of the bond sued on, and during his term of office, there came into Thomas' hands, as such master, certain moneys, being the proceeds of a sale of real estate made by him in a partition proceeding, $703.87 of which belonged to the said Joiner, and for which the recovery in this suit was had. Long before the partition proceedings, however, Joiner had left his home and people in St. Clair county, and his whereabouts was to them, and all his former acquaintances, wholly unknown. Not having been heard of by any of his relations or acquaintances for more than seven years, his brother, Daniel Joiner, acting upon the hypothesis he was dead, applied to and obtained from the county court of St. Clair county letters of administration on his estate. After administration had been thus granted on John's estate upon the hypothesis that he was dead, the said Charles W. Thomas, upon formal demand by Daniel Joiner, paid to him, as the administrator of John, the latter's share in the proceeds of the partition sale. John subsequently, however, turned up alive, and on Thomas' refusal to pay the claim a second time, instituted the present action, with the results already stated.

The foregoing facts are specially pleaded as a defence to the action, and the question for determination is, are they sufficient for that purpose. While the question has never before, so far as we are advised, been directly presented to this court, yet it is by no means a new one. It has frequently been mooted before the courts of this country and of England, though actual decisions directly upon the question are not very numerous. Judging from the cases where the point has come directly in judgment, as well as from judicial dicta and expressions of opinion to be found in the standard text-books, there has been but little diversity of opinion upon the question. The general doctrine on the subject undoubtedly is, that a grant of administration on a live man's estate, together with all acts done under such a grant, is absolutely null and void. Allen v. Dundos, 3 T. R. 125; Freeman on Judgments, (3d ed.) sec. 319a; Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; DArusment v. Jones, 4 Lea, 251, 40 Am. Rep. 12; Stephenson v. Superior Court, 15 Rep. (Col.) 140; Melia v. Simmons, 45 Wis. 334, 30 Am. Rep. 746; Griffith v. Frazier, 8 Cranch, 23.

It is said by Freeman, in discussing the question, in his work on Judgments, above cited: “The decrees and orders of a probate or surrogate's court, made in the exercise of jurisdiction conferred upon it by law, are as final and conclusive as the judgments, decrees or orders of any other court. The character and finality of res judicata attach to the decisions made in probate or surrogate's courts, irrespective of the nature of the issue determined, provided, always, that the court had jurisdiction to determine it. Hence, whether the adjudication be for or against the validity of a will, for or against granting letters of administration, allowing or disallowing an account, granting or refusing to grant a homestead, it is in either case a final settlement of the matter of which it assumes to dispose, and it can not be collaterally attacked, impeached or avoided in...