| Ill. | May 11, 1891
delivered the opinion of the Court:
It is claimed that the notice by publication was insufficient,. because it failed to state the place of holding court. Section 12 of the Chancery act provides that such publication shall contain notice of the pendency of the suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case. Here, the notice was dated August 16, 1888, and the venue stated therein was, State of Illinois and Vermilion county, and it was entitled of the October term, 1888, of the circuit court, and it gave information that the bill had been filed in the circuit court of the county named in the caption, that the suit was pending in said court, and that a summons had issued out of said court returnable on the first day of October then next. Section 20, -of chapter 37, of the Revised Statutes, provides that the circuit courts of the several counties of this State shall be held in the court houses of such counties, except as otherwise provided by law. The summons was legally required to be returned to the court from which it emanated. The notification was, that that court was the circuit court of Vermilion county, in the State of Illinois, and said court, in the absence of provision of law otherwise, was necessarily in the court house of Vermilion county, at the county seat of Vermilion county. While the place of the return of the summons in the case was not formally mentioned in the notice, yet the publication made substantially contained notice of such place. A construction so strict that it would endanger the validity of titles and the stability of legal proceedings should not be placed upon the statute. The real question is, and should be, not whether the notice given was formally and technically accurate, but whether or not the object and intent of the law was substantially attained thereby. We think that the conclusion we have reached on this point is in conformity with the decisions of this court in Goudy v. Hall, 36 Ill. 313" date_filed="1865-01-15" court="Ill." case_name="Goudy v. Hall">36 Ill. 313, and Clark et al. v. Marfield, 77 id. 258.
The certificate of the publisher states that the first publication of the notice was on August 18, 1888, and the certificate of the clerk states that he mailed copies of the notice to the defendants on August 17, 1888, and “within ten days after the first publication of the notice. ” It is impossible that the clerk could have mailed the copies a day before they were in existence. The statute made it the duty of the clerk to mail the copies within ten days after the first publication, and it makes his certificate of that fact evidence. He expressly certifies the mailing “within ten days after the first publication,” and the presumption is in favor of the performance of his official duty in that regard. The insensible statement that he mailed the printed notice prior to the time it was printed’ should be rejected, and the sensible and pertinent statement,, and which is in conformity with the requirements of law and of duty, and in consonance with the regularity of legal proceedings, should be allowed to stand. (See, in connection herewith, Schaefer v. Kienzel et al. 123 Ill. 430" date_filed="1888-01-20" court="Ill." case_name="Schaefer v. Kienzel">123 Ill. 430.) Our conclusion is, that the service by publication was such as conferred upon the circuit court jurisdiction over the persons of plaintiffs in error.
It is objected that plaintiffs in error were not ruled to answer the original bill. The entry of such rule was unnecessary. There having been due service upon them by publication, and more than forty days having intervened between the first publication and the first day of the term, they were, by the Chancery act, required to except, demur or plead to the bill, or answer the same, on or before the return day of the summons-issued in the cause. (Rev. Stat. chap. 22, secs. 13 and 16.)' No formal default was entered against the defendants, but the-decree recites that they “failing to plead, answer or demur to-said bill, it is ordered, adjudged and decreed by the court that, the same be taken pro confesso against the said Thomas F. Michael and Andrew J. Michael.” This was amply sufficient. Grob v. Cushman, 45 Ill. 119" date_filed="1867-09-15" court="Ill." case_name="Grob v. Cushman">45 Ill. 119; School Directors v. School Directors, 73 id. 249; Savage et al. v. Berry, 2 Scam. 545.
- We do not deem it necessary to pass upon the effect of the-fact that while leave was given to amend the bill by making three of the complainants therein,— Catherine L. Michael, Mary H. Smith and Martha A. Mace,—parties defendant, yet that no amendment thereto was in fact made. We will assume, for the purposes of the decision, that the persons named*, became and were defendants to the original bill, and as such were entitled, after answering the same, to exhibit their respective cross-bills. They having filed their several cross-bills, were entitled to call upon the defendants thereto to answer the same in such time as should be prescribed by the. court. (Rev. Stat. chap. 22, sec. 30.) No rule was entered against plaintiffs in error to answer either of said cross-bills,, nor was any default taken against them on either of the cross-bills, nor was any order entered taking either of said cross-bills for confessed as against them. No statutory or other duty was imposed upon plaintiffs in error to answer said cross-bills until called upon by the complainants therein and by rule-of court so to do. They were in nowise in default in respect thereto,'and, as above stated, the court did not assume to default them thereon, or to take the. cross-bills as confessed. Yet the court, in its final decree, took from them their interest in a three-elevenths part of an eighty-acre tract of land of which the original bill alleged their father died seized. This part of the decree was predicated upon the cross-bill of Catherine L. Michael, and was in the very teeth of the averments of the original bill. So, also, by said decree relief was granted Smith and Mace upon their cross-bills, and by which action of :the court plaintiffs in error were deprived of valuable rights . and interests. We think that in these respects there was manifest and substantial error in the proceedings and decree of the court.
The decree that was rendered by the court was contradictory to and inconsistent with itself. It expressly found that the-allegations in the original bill of complaint were true, and that partition and division ought to be made as prayed for therein. It then proceeded to adjudge an undivided three-elevenths part of the tract of land containing eighty acres to Catherine L, Michael in fee simple. The cause had been referred to the master in chancery to take testimony and report his conclusions. He reported that Robert Michael died seized of all the real estate described in the bill of complaint, except one-eleventh of the homestead tract of eighty acres, and that $ Catherine L. Michael was the owner in fee simple of said one-eleventh. No exceptions were taken to this report, and with its conclusions the parties were presumably content. The court heard the cause upon the pleadings and upon said report, and heard no additional testimony. It made an order expressly approving and confirming said report, and yet decreed three-elevenths of said eighty acres of land to said Catherine L. in fee simple.
One of the errors assigned is, that the decree is contrary to the evidence. It is insisted by defendants in error, that parties against whom a bill has been taken for confessed can not complain and assign for error that the proofs are insufficient', citing, in that behalf, Farnsworth v. Strasler, 12 Ill. 482" date_filed="1851-06-15" court="Ill." case_name="Farnsworth v. Strasler">12 Ill. 482, and other authorities. The rule suggested has little, if any, application to the case at bar. Almost all of the evidence found in the record has reference only to the cases made.by the cross-bills. As we have already seen, the cross-bills were not taken for confessed against plaintiffs in error, and could not properly have been so taken. It can not justly be claimed that they, by default or otherwise, have ever confessed the allegations of the cross-bills to be true. We have examined the testimony. As we understand it, it tends strongly to show that Catherine L. Michael was the owner of an undivided one-eleventh part of the homestead tract. The evidence to show a resulting trust in respect to an undivided two-elevenths interest therein, in addition, seems to be vague and unsatisfactory. Said Catherine L. was the principal witness to establish such trust, and she was manifestly an incompetent witness to establish the same as against plaintiffs in error, who defend as the heirs of their deceased father. It is also evident that they should have an opportunity to defend against the claims of said Catherine L.
There are various other alleged errors assigned upon the record, but the irregularities so complained of can readily be remedied upon the remandment of the case.
. For the errors indicated in this opinion the decree is reversed and the cause remanded.
Decree reversed.