37 Ill. 306 | Ill. | 1865
delivered the opinion of the court:
This was a motion in the Circuit Court of Iroquois county, to set aside a sale on partition, and all the orders made in the cause.
The suit was for the partition of the land of Eben Dunning, and filed by a portion of his heirs at law against the widow and the other heirs at law. The defendants duly appeared and filed their answers to the petition, and such proceedings were thereupon had, that the court decreed a partition of the lands and appointed commissioners for that purpose, with directions to set off the widow’s dower in the lands. At the same term the commissioners reported the land could not be divided without prejudice to the owners, whereupon an order was made for a sale of the land and a jury was empannelled to enquire of the yearly value of the widow’s dower, and to allot the same to her, instead of a portion of thé land. The jury assessed the yearly value of the dower at two hundred and twenty-five dollars. A sale was made by the Master in Chancery of the land, subject to this allotment to the widow, which was approved by the court.
A motion was made to set aside all the proceedings, which the court denied.
Many reasons were assigned as grounds of the motion, all which, it is not necessary to notice. The one most important is the first; that the petition was not sworn to as the statute requires. This objection would have prevailed, doubtless, if made at the outset, and before answer filed. After a regular appearance by attorney, answer filed, decree had, and a sale of the premises, and the report thereof approved, this objection comes too late. It is, at most, but a dilatory motion, and must be made in apt time, which is at the earliest moment.
As.to the second point, process is unnecessary in any case, where the party voluntarily appears and pleads. Process could do no more than compel appearance, and the purpose is answered if the party comes voluntarily into court. But it is said, the attorneys who appeared for the defendants, and put in the answer to the petition, had no such authority. On this point there are several affidavits, and the weight of testimony contained in them, greatly preponderates in favor of the right of the attorneys to enl er an appearance and file an answer. It seemed to be an amicable proceeding between all the parties interested. This disposes of the third objection. As to the fourth, there is no law with which we are familiar, requiring the presiding judge of a Circuit Court to sign a decree which he directs the clerk to enter. The entry of the decree on the record gives it its validity.
As to the fifth objection that the plaintiff was a non-resident and filed no cost bond, it comes too late, after answering to the merits. It if a dilatory motion, and if not interposed at the proper time, will be considered as waived. The objection cannot be made after answer or plea filed. Trustees of Schools v. Walters, 12 Ill., 154.
It is unnecessary to pass upon the other points in detail, but we will come to the eleventh, which seems to present the gist of the controversy. It is this. “ Because the lands were sold for one-half their value.” None of the affidavits show that there was any unfairness at the sale, It is admitted by all, that the whole proceeding was regular, and the sale had in the presence of two of the defendants and their attorneys, and no objections made. The evidence is quite strong, that with the yearly incumbrance of two hundred and twenty-five dollars on the land, in favor of the widow, fifteen dollars per acre was a full price for the land.
But an insuperable objection to allowing the motion, is, that the purchaser of the land had no notice of the motion. He was a party in interest and entitled to notice. Nor could the court, on the motion to set aside the sale, look into any irregularities preceding the sale. There being, then, a ratification by the defendants of the acts of the attorneys, Boff and Kinney, if not an implied original authority to enter their appearance, and the court having thus jurisdiction of the defendants, we do not feel authorized on this motion, to go back of the decree of sale.
On the merits of the controversy, the whole case shows that the proceedings for partition and for an allowance to the. widow, were of that amicable character, at the start, families often enter into, but which sometimes terminate, as this has done, in an expensive law suit.
The judgment, on the motion, must be affirmed.
Judgment affirmed.
