| Ill. | Oct 24, 1905
delivered the opinion of the court:
This is not a bill for review nor a petition for rehearing, but is an original bill in equity in behalf of a minor defendant to the decree entered in the case of Nettie L. Stafford against the plaintiff in error and his mother, Mary Crane, and another, to impeach that decree for errors of law apparent on the face of the record. That courts of equity in this State will entertain such bills in behalf of infants without requiring them to apply for a rehearing or to file a bill for review or sue out a writ of error was declared in the early case of Loyd v. Malone, 23 Ill. 41, and reiterated in many subsequent decisions, among others, Gooch v. Green, 102 Ill. 507" date_filed="1882-03-28" court="Ill." case_name="Gooch v. Green">102 Ill. 507, Hess v. Voss, 52 id. 472, Lloyd v. Kirkwood, 112 id. 329, Haines v. Hewitt, 129 id. 347, Coffin v. Argo, 134 id. 276, and Clark v. Shawen, 190 id. 47. Such a bill may be filed at any time during minority or within the period allowed after majority for the prosecution of a writ of error. (Haines v. Hewitt, supra.) The same relief could not, as counsel for defendants in error suggests, be obtained by motion. The decree that partition of the lands could not be made and ordering that the master should make sale of the lands and distribute the proceeds was a final, appealable decree in the case. (Rhodes v. Rhodes, 172 Ill. 187" date_filed="1898-04-21" court="Ill." case_name="Rhodes v. Rhodes">172 Ill. 187.) It was entered April 30, 1903, and though the cause was continued until the next term of this court, it remained on the docket only for orders relative to the execution of the decree. As to matters sought to be remedied by this bill, the decree that partition could not be made and ordering that the lands should be sold became a final decree at the expiration of the term of court at which it was rendered. (Jackson v. Jackson, 144 Ill. 274" date_filed="1893-01-19" court="Ill." case_name="Jackson v. Jackson">144 Ill. 274.) The bill was filed in vacation, following the term at which the decree was rendered. Alleged errors of law in a proceeding culminating in a decree cannot be examined and revised on mere motion entered after the close of the term at which the decree was entered. (Jacquemart v. Erb, 53 Ill. 291" date_filed="1870-01-15" court="Ill." case_name="Jacquemart v. Erb">53 Ill. 291; Tosetti Brewing Co. v. Koehler, 200 id. 369.) We think the bill should not have been held obnoxious to the demurrer.
It was necessary that in the proceeding sought to be impeached the court should have appointed some proper person to represent the plaintiff in error as his guardian ad litem. This is usually, and more properly, done by a formal order; still, the omission of a formal order might not constitute fatal error. That a guardian ad litem was appointed may appear by recitals or by reference in other portions of the record. Tibbs v. Allen, 27 Ill. 119" date_filed="1862-01-15" court="Ill." case_name="Tibbs v. Allen">27 Ill. 119.
It is the duty of a guardian ad litem to be present when testimony is taken before a master in support of the cause of the adverse party, and he is entitled to notice that such evidence is to be taken. (Turner v. Jenkins, 79 Ill. 228" date_filed="1875-09-15" court="Ill." case_name="Turner v. Jenkins">79 Ill. 228.) The bill under consideration alleged, on information of the plaintiff in error, that no one was present representing him as his guardian ad litem. The report of the master, as is conceded by the bill, recites that Hugh Thompson was present at the taking of testimony, in the capacity of guardian ad litem for the plaintiff in error.
The bill alleges that the master in chancery received and considered as competent testimony against the plaintiff in error an ex parte affidavit made by said Nettie L. Stafford, and also like affidavits of three other persons appear in the master’s report of the proof taken; that such ex parte affidavits were taken without notice or with the consent of the plaintiff in error or of anyone acting for him, and that such affidavits were used before the master for the purpose of proving that the marriage relation had existed between the said Nettie L. Stafford and said Charles Crane. It is needless to remark that affidavits of this character were not competent to be received in evidence or considered by the master. Nettie L. Stafford was endeavoring to establish that she had become the wife of Charles Crane in order that she might be deemed one of his heirs. The plaintiff in error, who was conceded to be an heir of said Charles, was defending in that capacity, and the alleged heirship of Nettie L. was in issue. She was not competent to testify to any facts tending to establish that the marriage relation existed between herself and the said Charles Crane. (Lawrence v. Lawrence, 164 Ill. 367" date_filed="1896-11-23" court="Ill." case_name="Laurence v. Laurence">164 Ill. 367.) Clearly the decree should not be permitted to stand if based on the testimony of an incompetent witness and on the mere ex parte affidavits of other witnesses.
It is apparent on the face of the record as disclosed by this bill that the court, in appointing but two commissioners to make partition of the lands, failed to comply with the plain requirement of section 16 of chapter 106 of the Revised Statutes, that the court, when it orders the partition of any premises made under the provisions of the act, shall appoint three commissioners to make such partition. This requirement as to the appointment of commissioners is essential, whether the proceeding for partition is under the statute or by bill in chancery. Coffin v. Argo, supra.
The bill avers that one A. C. Greathouse acted as a member of the commission, and that the report was signed by the two commissioners named in the decree and by Greathouse. This report was approved by the court. In Sullivan v. Sullivan, 42 Ill. 315" date_filed="1866-11-15" court="Ill." case_name="Sullivan v. Sullivan">42 Ill. 315, it appeared that the oath of the commissioners, and their report, bore date three days previous to the decree by which they were appointed, and we said that the basis of authority of commissioners is their appointment by decree of the c'ourt, and that it is only after appointment and after they have taken the oath required by the statute that authority is possessed to act as commissioners, and held that whether the approval by the court of the report made by the commisioners prior to their appointment constituted grounds of collateral attack, (which we did not decide,) it was clear that such action of the court would be regarded as error in a direct proceeding for a reversal of the decree. The plaintiff in error, because of his infancy, may, by the bill here under consideration, avail himself of any error apparent on the face of the record sought to be impeached which could be availed of on writ of error.
The allegations of the bill also disclosed another error apparent on the face of the record. The bill alleged that the master reported that the deceased, Charles Crane, was indebted on open account to certain named persons in the total sum of $62, and that an order was incorporated in the decree that said sum should be paid, out of the proceeds of the sale of the land, to A. G. Crawford, the attorney for said alleged creditors of the deceased, in satisfaction of their claims. Such claims are properly cognizable in a court of probate having jurisdiction of the matter of the administration of the estate of the deceased, but it was erroneous to allow them to be presented before the master in chancery, and to decree that they be paid by that official out of the proceeds of the sale of the land.
The bill is inartificially drawn and some of the allegations of fact are mingled with what is merely argument, but the demurrer, though purporting to be both general and special, makes no specific complaint, other than as to alleged defects of the bill in matters of substance. The bill, taken, as it is, to be true as to all pertinent allegations, discloses errors apparent on the face of the record, and our procedure in equity permits the plaintiff in error, because of his disability of infancy, to impeach the record by bill in equity if such errors are found to exist on inspection of the record.
The decree must therefore be and is reversed, and the cause will be remanded for further proceedings consistent with the views here expressed.
Reversed and remanded.