30 Ill. 109 | Ill. | 1863
This case depends entirely on the question whether the court which rendered the decree for the sale of the land had jurisdiction, and that depends upon the -inquiry whether there was a publication of notice as required by law. The court in the decree finds that the requisite notice had been given in these words: “and due notice having been given.” This was an inquiry which the court was called upon to make, and which it was its duty to decide, and the finding of the court on this question, has, by many very respectable courts, been held to be conclusive; against which no averment or proof can be admitted. We have, however, taken a different view. When the question of jurisdiction is once admitted, then, in all collateral proceedings at least, the findings of the court must be conclusive; but upon the question of the right of the court to act upon the persons or rights of parties, we think there is great propriety in holding that the finding of the court is not conclusive. If the requisite notice has not been given to, or process has not been served upon a party, then the court has no more authority to adjudicate upon his rights, than a stranger, or a private individual. And all that the court does, all its findings, are absolutely void, as well the finding that the notice was given or process served, as the others. Take the case where the law requires six weeks notice, and the record itself shows but three weeks notice was given ; or, where a process has been returned not served, and the court should find that the requisite notice was given, or, that the process was duly served; it would be absurd to say that such finding was conclusive, when the very record would show that this finding was void for want of jurisdiction to find anything whatever in the case. Whitney v. Porter, 23 Ill. 445; Reddick v. President State Rank, 27 Ill. 147; Gibson v. Roll, 27 Ill. 88. But while we may not hold this finding of the court conclusive that due notice was given, beyond all doubt it should be held prima facie to establish the fact, and the court would not disregard it, except upon very clear and satisfactory proof that due notice had not been given, or that process had not been served upon the party. In this case there was nothing to show that the finding of the court- was not in strict accordance with the fact. The plaintiffs made no attempt to prove that due notice had not been given, but relied upon the assumption that it was the duty of the defendant to show that the notice had been given, notwithstanding the finding of the court. In this we have seen they were mistaken-. It is unnecessary to determine whether the secondary evidence offered by the defendant to prove the notice was properly admitted or not. It is sufficient that it had been found by the court, and it was for the plaintiff to establish the contrary.
The judgment must be affirmed. Judgment affirmed.
