Wuerzburger v. Wuerzburger

• Decision Date: 17 April 1906
• Citation: Wuerzburger v. Wuerzburger, 221 Ill. 277, 77 N. E. 419 (Ill. 1906)
• Parties: WUERZBURGER et al. v. WUERZBURGER et al.
• Court: Illinois Supreme Court

221 Ill. 277

77 N.E. 419

WUERZBURGER et al.

v.WUERZBURGER et al.

Supreme Court of Illinois.

April 17, 1906.

Error to Circuit Court, Woodford County; S. S. Page, Judge.

Partition by Anna Wuerzburger and others against John Wuerzburger and others. From a decree confirming the sale of the property, Anna Wuerzburger and Eddie Wuerzburger, who were minors at the time the decree was rendered, bring error. Dismissed.

L. F. Meek and Barnes & Magoon (L. Walter MacNeil, of counsel), for plaintiffs in error.

Thomas Kennedy and William A. Potts, for defendants in error.

This was a writ of error sued out by Anna Wuerzburger and Eddie Wuerzburger on May 26, 1904, from this court to review a decree of the circuit court of Woodford county entered on the 17th day of December, 1885. Complainants in the bill were Anna Wuerzburger, widow of John Wuerzburger, and six of the children of said John Wuerzburger, including the plaintiffs in error, who were then all minors and who sued by Herman J. Pelz, as their next friend, and the defendants were the eight adult children of said John Wuerzburger and certain parties holding judgments and mortgage liens upon the real estate sought to be partitioned, and the bill prayed for the partition of the N. E. 1/4 of section 13, township 26 N., range 1 W. of the third P. M., Woodford county, Ill., between the heirs of John Wuerzburger, who died seised of said real estate on August 16, 1885, and for the assignment of dower and homestead therein to his widow, Anna Wuerzburger. The commissioners reported the real estate was not susceptible of division and appraised it at $9,600, and the widow having consented, in writing, that said real estate be sold disincumbered of her dower and homestead therein, on the 6th day of January, 1886, the court entered a decree ordering that the master in chancery sell the real estate, and it was sold on February 26, 1886, to Richard O. Colburn for $7,992, and on April 6, 1886, the sale was approved and the master was ordered to make a deed to the purchaser, Richard O. Colburn. A deed was subsequently made and the purchase money distributed under the direction of the court. The plaintiffs in error, Anna Wuerzburger and Eddie Wuerzburger, at the time the decree was entered, were of the ages of four and seven years, respectively, and a writ of error was sued out within five years after they attained their majority. The defendants in error are all of the complainants, other than said Anna and Eddie Wuerzburger, and all the defendants and Mary E. Madison and Leona Colburn.

HAND, J. (after stating the facts).

A motion was made to dismiss the writ of error, which has been reserved to the hearing. The grounds of the motion, so far as we deem them material, are as follows: First, the parties to the writ of error are not the same as the parties to the suit in the court below; second, all the parties complainant in the court below were not joined as plaintiffs in error; third, Mary E. Madison and Leona Colburn were not parties to the suit in the court below, either as complainants or defendants.

It has been held since the early case of Robinson v. Magarity, 28 Ill. 423, to be the law of this state that a writ of error must be sued out in the same names in which the proceedings below were conducted, and in no other. And section 70 of the practice act (3 Starr & C. Ann. St. 1896, p. 3099) provides that it is permissible for the plaintiff in error to join his coplaintiffs or codefendants in a writ of error without their consent, and the practice is, if the parties whose names are thus used by a coplaintiff or a codefendant choose to abide an erroneous judgment or decree and refuse to appear and assign errors, they must be summoned and severed, and then, after the severance, the writ may be prosecuted in the name of said coplaintiffs or codefendants. In McIntyre v. Sholty, 139 Ill. 171, 176, 29 N. E. 43, 44, the court said: ‘All the plaintiffs or defendants in the original suit who are alive must join in the writ of error, and it is competent for one to join the others without their consent. The reasons for this rule are that the writ msut agree with the record, and that if one of a number of plaintiffs, or one of a number of defendants, who have not distinct and several interests should be permitted to bring a writ of error, every one might do the same, and such a practice would tend to multiply suits. If the parties whose names are thus used by a coplaintiff or codefendant choose to abide an erroneous judgment and refuse to appear and assign errors, they must be summoned and severed, and then, after the severance, the writ may be prosecuted in the name of such coplaintiff or codefendant.’ And in Cooke v. Cooke, 194 Ill. 225, 227, 62 N. E. 536, 537: ‘Any one who is a party to the record or is shown by the record to be prejudiced by a judgment or decree may sue out a writ of error, and is permitted to use the names of all his codefendants without their consent. Practice Act, § 70; 3 Starr & C. Ann. St. 1896, p. 3099. But he cannot prosecute his writ without joining his codefendants, who are identified in interest with him, and obtain the jedgment of this court so far as the decree affects him. Plaintiff in error was but one of the defendants in the circuit court, and all the other defendants were united in interest with him. The decree affects them all and in the same way,...