30 Ill. 172 | Ill. | 1863
The only question to be considered in this case, is the sufficiency of the notice to justify the action of the court. If the notice was insufficient to give the court jurisdiction to make the order for the sale of the real estate, then the sale under that order conveyed no title. This was the notice and certificate of publication:
" Administrator's Notice.—Notice is hereby given that I will make application to the County Court of Tazewell county, on the third day of September, for a decree to sell all or so much of the real estate of Benjamin F. Jewett, deceased, late of Tazewell county, as will be sufficient to pay the debts of said estate. All persons interested are requested to appear and show cause, if any they have, why such decree should not be granted.
WILLIAM S. MANS,
“Pekin, July 24, 1856. Adm’r of Benj. F. Jewett, dee’d.”
Accompanied by the following certificate :
“We, Toung & Underwood, printers and publishers of the ‘Weekly Plain-dealer,’ do hereby certify that the annexed advertisement was published in the ‘ Weekly Plaindealer’ for six weeks successively—the first publication being on the 24th day of July, 1856, and the last publication on the fourth day of September, A. D. 1856. TOUNG & UNDERWOOD,
Publishers and Printers,”
The statute requires the notice to be published for three successive weeks, the first publication to be at least six weeks before the presenting of the petition. Here there was less than six weeks between the 24th day of July, when the notice was first published, and the third day of September, when all persons interested were notified that the petition would be presented, and had the petition been presented on that day there is no doubt that the notice would have been insufficient. But the record shows that the petition was actually presented on the ninth day of September, when the six weeks had expired. Was then this notice sufficient to authorize the court to receive the petition on the ninth of September, and to act upon it ? Were parties interested bound to appear at all under a notice which showed on its face that they were notified so to do, at a time when the law imposed no obligation upon them to appear? We are inclined to think that the notice was void upon its face. The question is not whether, if the six weeks had expired on the third of September, the court could have received the petition afterwards, though that would be by no means clear. The one hundred and fourth section says, “ It shall be the duty of the Circuit Court, at the time and place specified in the notice aforesaid, or at such other time as the said court shall appoint, to hear and examine the allegations and proofs of such executor or administrator,” etc. Now, this would seem to imply, that the petition must be presented on the day specified in the notice, and then the court may order another day for hearing the proofs. The statute does not say that the court may order another day for the presentation of the petition. The order authorized to be made would seem to follow the presentation of the petition, and is in the further progress of the cause. Until the petition is presented there is nothing upon which the court can act; there is no proceeding in which the court can make the order fixing the time for hearing the proof. When the notice is published as required by the statute, those interested are bound to appear and attend upon the court during the whole of that day, either to resist the application then, or to hear the order of the court fixing another time for hearing the proof; but if during that day no petition is presented, they may well presume that the purpose of presenting it is abandoned, and go about their business. It would be a great hardship to require them to attend during a whole term, lasting perhaps for several weeks, to see if some move would not be made in the matter.
We think the court decided properly in rejecting the deed, and its judgment is affirmed.
Judgment affirmed.
