110 Ill. 53 | Ill. | 1884
delivered the opinion of the Court:
Inasmuch as the circuit court unquestionably had jurisdiction of the subject matter of the litigation, if it also had jurisdiction of the persons affected by the decree, it must follow, that so far as Mary E. Knowles is concerned, the errors assigned in regard to the admissibility and sufficiency of the evidence are unimportant, for, being a purchaser in good faith, while the decree was unreversed and in full force, she will be protected, although there may have been error in rendering the decree. Barlow et al. v. Standford et al. 82 Ill. 298; Mulvey v. Gibbons et al. 87 id. 367; Wadhams v. Gay, 73 id. 415.
First, then, was the notice to the defendant, John C. Hannas, sufficient ? The 12th section of chapter 22, of the Revised Statutes of 1874, entitled “Chancery,” is as follows: “Whenever any complainant, or his attorney, shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this State, or on due inquiry can not be found, or is concealed within this State so that process can not be served upon him, and stating the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence can not be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, * * * containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of the summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit.” The affidavit here filed fully conforms to these requirements. It alleges that complainant “has made due inquiry to learn the place of residence of the defendant, John C. Hannas, and is unable to ascertain the same; that his last known place of residence, so far as her personal knowledge goes, was the city of Chicago, in this State, which place he left about six years ago, and, as she is informed and believes, he went to California, and about- two years ago she was informed he was in San Francisco, in the State of California, since which time she has, upon due inquiry, been unable to find where he is residing. ” Assuming, as for the present question we must, that these allegations are true, we can not conceive how the affidavit could have been any more full and specific. The notice published also fully conformed to the requirements of the section. It contained a notice of the pendency of the suit, the names of the parties thereto, the title of the court, the time and place of the return of the summons, and that a summons had been issued so returnable.
It not only appears by the clerk’s certificate that the clerk had sent a copy of the notice by publication, by mail, addressed to the defendant, John C. Hannas, at his last known place of residence, as stated in the affidavit,—i. e., “San Francisco, California, ”—but it is proved by other unquestioned evidence that such defendant actually received such notice before the return day of the summons, and in ample time to have made defence to the suit. We do not think the mere fact that no summons is found in the record can be regarded as sufficient to overcome the presumption that the clerk did his duty and issued one, the positive- recitals in the notice published by him, and the inference to be drawn from the recitals in the decree that due notice of the pendency of the suit was given. The tendency of our decisions is directly the other way. The logical deductions to be drawn from them sustain the sufficiency of this notice. Tompkins v. Wiltberger et al. 56 Ill. 385; Millett et al. v. Pease et al. 31 id. 377; Tibbs v. Allen, 27 id. 119; Prout v. The People ex rel. 83 id. 154; Turner et al. v. Jenkins, 79 id. 228; Miller v. Handy, 40 id. 448; Mulvey v. Gibbons et al. 87 id. 367; Haworth v. Huling et al. id. 23. It is made morally certain here, by the evidence, that the defendant, John C. Hannas, was not, in fact, in Cook county, or anywhere else in this State, between the date of the filing of the bill and the term to which the summons was, if issued, returnable, and hence that it would have been impossible that the summons should have been personally served upon him; and he was, in fact, personally furnished with a copy of the notice, by publication, and so he had all the notice- that he needed, and all that is contemplated by the statute in such cases. We think there was ample jurisdiction of the person.
Second—The only object in making Cook, the trustee, a defendant, is to bind him by the decree. We are unable to perceive why he might not, as he has done, waive the necessity of a formal summons in that regard, and come in, on the hearing, and consent to be treated as a party to the decree, and to be bound by it. He here indorses upon the decree: “I hereby consent to the entering of the within decree, and agree to hold the title to the premises therein described, in trust, as declared and defined by the said decree, or by any decree the court may enter in said suit, and hereby consent to be made a party thereto. ” Surely one may voluntarily consent to be bound by a decree, although not a formal party thereto. But it is quite clear, even if the omission of this party was error, it is not an error that affects the defendant, John C. Hannas. Cook was a mere dry trustee, having no interest whatever in the property affected by the decree. It was a matter of indifference to the discharge of his duties, whether the complainant was entitled to the relief she sought or not. The real and only controversy was between Margaret and John C. Hannas, and so any error there may have been in omitting to make Cook a party to the bill can not now be urged as ground of reversal by the defendant, John C. Hannas. Walker v. Abt et al. 83 Ill. 227; Short et al. v. Raub, 81 id. 509; Horner v. Zimmerman et al. 45 id. 16; Greenman v. Harvey, 53 id. 386.
So far, then, as Mary E. Knowles is concerned, there is no error by which she can be affected. But we are also of opinion the record discloses no substantial error in respect of the admission of evidence, or the sufficiency of the evidence to sustain the-decree. The fact that there was no objection to the admission of any evidence is a sufficient answer to the objection that secondary evidence was improperly admitted. Theoretically the defendant was in court, and no principle is better settled than that a party can not stand by and permit improper evidence to be given, and object to its competency for the first time in this court. There was no certificate of evidence, and whether all the evidence is preserved in the record, we can not, therefore, know. The findings sustain the decree, and that is sufficient. Walker v. Carey, 53 Ill. 470.
But again, in this case the bill was taken pro confesso. In such case, although evidence is admitted, its sufficiency to sustain the decree can not be considered. The decree may be rendered without any evidence, and therefore the only inquiry admissible is as to the sufficiency of the allegations of the bill. Boston v. Nichols, 47 Ill. 353; Gault v. Hoagland, 25 id. 266; Stephens v. Bicknett, 27 id. 444; Harmon v. Campbell, 30 id. 25; Manchester et al. v. McKee, 4 Gilm. 511.
The objection that complainant was guilty of laches in not filing her bill, is not tenable. No such defence is interposed in the answer, nor does the bill seek to explain and excuse the delay, as in Hall v. Fullerton, 69 Ill. 448, and Williams v. Rhodes et al. 81 id. 571, and evidence of such defence would therefore have been inadmissible. (Trustees v. Wright, 12 Ill. 432.) But even if the pleadings were, in this respect, sufficient, there is nothing in proof to show that any shorter period of limitation should be applied than that prescribed by the statute.
The decree must be affirmed.
Decree affirmed.
