78 Ill. App. 177 | Ill. App. Ct. | 1898
delivered the opinion of the court.
Affidavits <?f non-residence can be filed and service by publication can be had only as to those who are defendants. Ho one can be a defendant in a cause in equity till he has been so named in the bill of complaint, with a prayer for relief against him. Story’s Equity Pleading, Secs. 26, 44. Hansen was first named as a defendant in this cause September 21, 1897. The attempted notice to him by publication prior to that date was a nullity. Hodgen v. Guttery, 58 Ill. 431.
There was no service upon Hansen, and therefore the decree was erroneous in establishing a vendor’s lien upon the land when the bill averred it had previously been conveyed by Shannon to Hansen by warranty deed, and that Hansen was in possession of the land, claiming to own it. The decree was also erroneous in directing the overplus to be paid to Shannon, under a bill making the averments stated. It is urged the decree is so erroneous as to Hansen that it is void as to him, and that as he was not served he was not in fact a party and can not bring a writ of error to reverse the decree; and that it is good against the Shannons. We can not concur in this view. A suit in equity is not Us pendens till a bill has been filed and service had. Grant v. Bennett, 96 Ill. 513; Drake v. Allison, 145 Ill. 500. Hansen became the owner of the land before the suit was Us pendens as to any one, and therefore the court could not establish and enforce a lien on the land until he was made a party and served with summons; and with Hansen not a party to the suit there was nothing to give a court of equity jurisdiction; and in that condition of the record complainant should have been left to sue Shannon at law upon his promise. But the record makes Hansen an apparent party and recites service upon him by publication, establishes a lien upon his land and orders it sold and the proceeds paid to others. It creates a cloud upon his title. We do not doubt his right to resort to a writ of error to secure the reversal of an erroneous decree having this apparent effect upon his property. Under the facts stated the Shannons should be permitted to answer.
The decree will be reversed and the cause remanded.