30 Ill. 215 | Ill. | 1863
The bill in this case was exhibited to impeach a former decree. It alleges, that when the former decree was announced, the court had no jurisdiction of the persons of the defendants to that suit, nor of the subject-matter, and the decree was rendered without evidence for its support. There was service of summons in chancery, but no publication or copy of the petition and account as required by the statute regulating such proceedings. The proceeding seems to have been regarded as a suit in chancery, and not under the statute.
It is urged, that the law does not authorize the administrator to proceed to subject the real estate to sale, for the payment of the debts of the deceased by bill, and that the whole proceeding is void. In the case of Herdman v. Short, 18 Ill. 59, this proceeding was held to be statutory, and unless the notice required by the statute is given, in the mode prescribed by the 103rd section of the statute of wills, there was a want of jurisdiction of the persons of the defendants. It was also held in that case, that the service of a summons on an adult defendant to such a proceeding, conferred no jurisdiction of the person. There is no pretense, that in the case for the sale of real estate, there was any other than service by summons, and we have seen that did not confer jurisdiction of the persons of the defendants. It is a rule too familiar to require discussion, or to cite authorities in its support, that in all judgments and decrees, to be binding, the court rendering them must have jurisdiction of both the persons of the parties, and of the subject-matter of litigation. The decree ordering the sale of the decedent’s property was void, for the want of the jurisdiction of the heirs.
That decree being void, it is unnecessary to discuss other questions of mere errors appearing in that decree. Whether there were other errors in that proceeding, is a matter of no consequence, as the whole proceeding is void if the bill is true, and the record of the former proceeding seems to sustain its allegations.
Then did the court err in dismissing the bill, because the decree sought to be impeached was void ? A bill may be maintained to impeach a decree, obtained by fraud, or which is manifestly unjust. Lloyd v. Malone, 23 Ill. 43. That a void decree is a cloud upon the title to this real estate, is unquestionably true, and that it is calculated to operate unjustly against the owners, is equally true. As a cloud on the title, it operates as an injury to the owner, and as such he «has a right to have it removed. As long as it remains unimpeached, it may be used for fraudulent or other improper purposes. The court below should have retained the bill so as to have reversed the former decree, and thus have removed it from the records.
The decree of the court below is reversed, and the cause remanded.
Decree reversed.
