Thomas v. the People

CourtSupreme Court of Illinois
Writing for the CourtMULKEY
Citation1883 WL 10330,107 Ill. 517,47 Am.Rep. 458
Decision Date30 November 1883
PartiesCHARLES W. THOMAS et al.v.THE PEOPLE, for use of John Joiner.

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,

[107 Ill. 518]

(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

[107 Ill. 519]

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.

[107 Ill. 520]

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.

[107 Ill. 521]

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...

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26 practice notes
  • Lesch v. Mccauley & Nisen & Elliott, LLC (In re Estate of Zagaria), Docket No. 1–12–2879.
    • United States
    • United States Appellate Court of Illinois
    • September 30, 2013
    ...of administration on a live man's estate, together with all acts done under such a grant, is absolutely null and void.” Thomas v. People, 107 Ill. 517, 522 (1883). However, as the same court later found in Eddy, this doctrine was superceded by the enactment of section 78 of the administrati......
  • Jordan v. Chi. & N. W. Ry. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • October 18, 1905
    ...v. Wis. M. & F. Ins. Co. Bank, 105 Wis. 464, 81 N. W. 642. See, also, D'Arusment v. Jones, 4 Lea, 251, 40 Am. Rep. 12;Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458;Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896;Cunnius v. Reading School Dist., 198 U. S. 458, 25 Sup. Ct. 72......
  • Courtney v. Prystalski, No. 22292.
    • United States
    • Supreme Court of Illinois
    • December 5, 1934
    ...a cause is jurisdictional. It is coram judice whenever a case is presented which brings this power into action. Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458;Kelly v. People, 115 Ill. 583, 4 N. E. 644,56 Am. Rep. 184;Bush v. Hanson, 70 Ill. 480. Whether a complaint does or does not correc......
  • Eddy v. Eddy, No. 14189.
    • United States
    • Supreme Court of Illinois
    • April 13, 1922
    ...49 L. Ed. 1125, 3 Ann. Cas. 1121. Prior to the enactment of section 78 of the Administration Act in 1911 it was held in Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458, and repeated in Salomon v. People, 191 Ill. 290, 61 N. E. 83, that administration of a living man's estate was absolutely ......
  • Request a trial to view additional results
26 cases
  • Lesch v. Mccauley & Nisen & Elliott, LLC (In re Estate of Zagaria), Docket No. 1–12–2879.
    • United States
    • United States Appellate Court of Illinois
    • September 30, 2013
    ...of administration on a live man's estate, together with all acts done under such a grant, is absolutely null and void.” Thomas v. People, 107 Ill. 517, 522 (1883). However, as the same court later found in Eddy, this doctrine was superceded by the enactment of section 78 of the administrati......
  • Jordan v. Chi. & N. W. Ry. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • October 18, 1905
    ...v. Wis. M. & F. Ins. Co. Bank, 105 Wis. 464, 81 N. W. 642. See, also, D'Arusment v. Jones, 4 Lea, 251, 40 Am. Rep. 12;Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458;Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896;Cunnius v. Reading School Dist., 198 U. S. 458, 25 Sup. Ct. 72......
  • Courtney v. Prystalski, No. 22292.
    • United States
    • Supreme Court of Illinois
    • December 5, 1934
    ...a cause is jurisdictional. It is coram judice whenever a case is presented which brings this power into action. Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458;Kelly v. People, 115 Ill. 583, 4 N. E. 644,56 Am. Rep. 184;Bush v. Hanson, 70 Ill. 480. Whether a complaint does or does not correc......
  • Eddy v. Eddy, No. 14189.
    • United States
    • Supreme Court of Illinois
    • April 13, 1922
    ...49 L. Ed. 1125, 3 Ann. Cas. 1121. Prior to the enactment of section 78 of the Administration Act in 1911 it was held in Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458, and repeated in Salomon v. People, 191 Ill. 290, 61 N. E. 83, that administration of a living man's estate was absolutely ......
  • Request a trial to view additional results

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