37 Ill. App. 311 | Ill. App. Ct. | 1890
On the 28th of October, 1889, Jennie Havenhill began suit in the Circuit Court against William,H. Maple; summons, returnable to the November term, was served on the 8th day of November; this was in time for the November term; no declaration -was filed until December 11th. The December term began on the 16th of that month. No plea having been filed, default of Maple was entered January 28, 1890, and, on January 30th, a judgment was taken against him for §2,000.
At the following May term, Maple appeared and asked the court to set aside the default and judgment, filing affidavits in support of said motion, from which it appeared that he examined the files on December 7th, and found no declaration on file; that on the 25th of January he again made search and found a declaration marked filed December 11th; that not until May 23d was he aware that any default or judgment had been entered; that no notice of any execution in the case was ever given him, yet it now appeared that the sheriff, on March 18, 1890, sold, under said judgment, certain real estate, one piece to Edith S. Mitchell, for §1,000, and on April 15th another piece to Jennie Havenhill for §1,059.43, which sales said Maple asked the court to set aside. The court denied said motions, and this action of the court is assigned as error, as well as the entry of default.
Service having been had ten days prior to the November term, and no declaration having been filed ten days prior to the December term, it was error to enter default and judgment, the defendant not having appeared or waived any of his rights. Pratt v. Grimes, 35 Ill. 164; Moody v. Thomas, 79 Ill. 274. And for this error the judgment must be reversed. Was the judgment void, and therefore ought the court to have set aside the sales made thereunder?
If the judgment was not void, the term at which it was entered having passed, the court had no power to set aside the judgment or sale; if void, the court might have set judgment and sale aside, in order that the court record might no longer speak an untruth. The court had jurisdiction of the subject-matter; it also had jurisdiction of the person; the defendant had been duly served with process, and thereby the court acquired jurisdiction to render a judgment against him; no declaration having been filed as required by statute, its act, thereafter, in rendering judgment against him, was erroneous, but was not of no effect. Mulford et al. v. Stalzenback, 46 Ill. 303; Freeman on Judgments, Sec. 116; Buckmaster v. Carlin, 3 Scam. 104; Swiggart et al. v. Harber et al., 4 Scam. 364, 371; Town of Lyons v. Cooledge, 89 Ill. 529; Rockwell et al. v. Jones et al., 21 Ill. 279; Coal & Mining Co. v. Coal & Mining Co., 111 Ill. 32-38.
Counsel contend that the judgment having been irregularly entered, the court had authority at a subsequent term to set it aside. We do not so understand the rule. With the lapse of the term the court loses all jurisdiction to set aside judgments theretofore entered. Freeman on Judgments, Sec. 96; Cook v. Wood, 24 Ill. 295; Knox et al. v. Winsted Savings Bank, 57 Ill. 330; Becker v. Sauter, 89 Ill. 596; Coursen v. Hixon, 78 Ill. 339.
In the case of so-called “ void judgments,” the court does not, at a subsequent term, set aside a judgment. Strictly speaking, there is no such thing as a void judgment; a void judgment is no judgment at all, and the court in dealing with it, in effect, merely wipes off the record an entry that serves no purpose except to mislead. It is suggested that in the case at bar a writ of error coram nobis would have lain, and that therefore the court had power to set the judgment aside.
The case is not such an one as would have justified the issue of the writ of coram nobis.
The error, as it appears upon the record, is not one of fact, but is one of law. The writ of coram nobis was used to correct errors of fact, not of law. Tidd’s Practice, 1137; Hawkins v. Bowie, 9 Gill & Johnson, 428.
Reversed and remanded.
