10 N.E.2d 325 | Ill. | 1937
Lead Opinion
The principal issue is whether a statute which confers power on courts of equity to render deficiency decrees in foreclosure proceedings, is repugnant to sections 2 and 5 of article 2 of the Illinois constitution, in that it deprives the mortgagor of due process of law and the right of trial by jury. The section in question (State Bar Stat. 1935, chap. 95, sec. 16, p. 2139,) provides, in part, that "In all decrees hereafter to be made in suits in equity directing foreclosure of mortgages, a decree may be rendered for any balance of money that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of such balance, the same as when the decree is solely for the payment of money." The appeal comes from the circuit court of Cook county where the chancellor confirmed a foreclosure sale for $8500 and entered a deficiency decree for $1150.90 against appellants. At the time the deficiency decree was entered appellants demanded a trial by jury, which was denied.
It is uniformly held that, in the absence of express statutory or constitutional provisions, a jury is no part of the chancery system. (21 Corpus Juris, 585.) With certain statutory exceptions, not relevant here, no such provisions exist in Illinois. In this State the guaranty of the right to a jury trial does not extend to cases of equity *23
jurisdiction, such as a bill to foreclose a mortgage. It is well settled that when a court of equity has jurisdiction of a cause for one purpose, it will retain such jurisdiction for all related purposes. (Dowden v. Wilson,
The jurisdiction of courts of equity to render deficiency decrees in foreclosure proceedings has been expressly conferred by statute in this State since 1865. Thus for nearly three-quarters of a century our rules and practice have enabled chancellors to enter deficiency decrees in foreclosure proceedings without a jury. No authorities have been cited, and no good reason has been advanced, why the statute authorizing this practice should now be invalidated. Under ordinary conditions, the determination of the amount due as a deficiency judgment is a simple process of arithmetic which a chancellor can calculate in a few minutes.
Appellants complain that section 16 above referred to is a violation of due process of law in that it does not authorize courts of equity to render deficiency decrees in all cases where there is a deficiency resulting from the sale of mortgaged premises, but only in those cases where the *24
defendant is personally served with process or personally enters his appearance. The single case cited in support of this contention (Sturges and Burn Manf. Co. v. Pastel,
We have examined the record in other respects and find no irregularities. The trial court properly confirmed the sale and committed no error in entering the deficiency judgment without a jury.
The decree is affirmed.
Decree affirmed.
Concurrence Opinion
I agree with the result reached in this opinion but not with all that is said therein. *25
