146 Ill. 275 | Ill. | 1893
delivered the opinion of the Court:
This is an appeal from a judgment of affirmance by the Appellate Court for the Fourth District. The following statement of the case by Sample, J., sufficiently presents the questions raised for decision in this court:
“The appellee filed its bill in chancery against appellants, to set aside certain deeds made by Washington Quinn to the other defendants. It appears that one John Quinn was indicted by the grand jury of Saline county for grand larceny. On the 19th day of March, 1888, he gave recognizance, in open court, for his appearance at the succeeding term, with Washington, James T. and George G. Quinn as his sureties. John Quinn not appearing at the following term of court, his recognizance was forfeited,, and final judgment entered thereon on the 13th day of March, 1889, for the sum of $1500 and costs. Thereafter executions were issued on said judgment and returned not satisfied, whereupon proceedings were taken to set'1 aside certain deeds, which, it is alleged, were filed of record after the entering into of said recognizance, whereby Washington Quinn fraudulently conveyed his lands to certain of his children, all of whom, together with the wife of Washington Quinn, are made parties defendant. The prayer of the bill is, that said lands be made subject to execution to be issued on said judgment, or that the court decree that so much of said premises be sold as may be necessary to satisfy said judgment, and for general relief. A demurrer to the bill was overruled, and the bill was then answered by the defendants, alleging the validity of the deeds. The answer’further sets up as a defense that sufficient real estate had been levied upon to satisfy said judgment, and that there was no criminal charge of any kind presented against John Quinn, nor was there any record of any indictment having been returned in open court against him, upon which it is supposed he was required to give bail.
“Issue was joined, and the cause heard by the court. A decree was entered in favor of the complainant, setting aside the deeds and directing the master in chancery to sell the lands to satisfy said judgment and costs, in case the same was not satisfied by payment by Washington Quinn within a certain time fixed in the decree; that said money should be paid by the master, in case of sale, to the State’s attorney of Saline county, and the residue, if any, should be paid to Washington Quinn; that in making such sale the master should be governed by the rules applicable to such sales in dealing with the estate of homestead, which the court found to be in Washington Quinn as to certain real estate that had been so fraudulently conveyed by him.”
It is first insisted by counsel for appellants, that the circuit court erred in refusing to 'sustain a demurrer to the bill of complainant, because James T. Quinn, one of the securities on the recognizance and a defendant in the judgment thereon, which is made the basis of complainant’s claim, was a necessary party to the bill. This position is untenable. No relief whatever is sought against James T. Quinn in this proceeding. He was in no way connected with the alleged fraudulent conveyance, and therefore has no legal interest, directly or indirectly, in the result of this litigation. It has been held that a judgment debtor is a necessary party to a creditor’s bill to set aside a fraudulent conveyance; but this is only so when the deed of conveyance sought to be set aside contains covenants of warranty. (Spear v. Campbell et al. 4 Scam. 424; Johnson et al. v. Huber, 134 Ill. 511.) It is a matter of indifference to James T. Quinn whether the conveyance here in question be sustained or not. He was not a proper party to the bill, much less a necessary one.
But it is said, it was necessary for the complainant to allege the insolvency of James T. Quinn, as well as each of the other defendants to said judgment. In other words, using their own language, “if any one of these sureties is solvent, then there is a complete remedy in law, and this bill should not have been entertained on demurrer being filed.” This point must have been made under a misapprehension as to the averments made in the bill. It is there expressly alleged, “that, aside from the lands hereinafter mentioned and described, the said John Quinn, Washington Quinn, James T. Quinn and George G. Quinn are each insolvent.”
It is also alleged that executions had been duly issued upon said judgment against each of the defendants thereto, and duly returned no property found. This was all the judgment debtor was required to aver and prove in order to show that it had exhausted its legal remedy. By such allegation and proof it did, for the purposes of maintaining this bill, establish the insolvency of the defendants to said judgment, and showed, prima facie, that it had exhausted its legal remedy. (Manchester et al. v. McKee, 4 Gilm. 511.) In our view of the case it is unnecessary to determine whether or not the bill is one which could be maintained without an averment and proof that the remedy at law had been exhausted, because, as we understand the record, there is, within the meaning of the law, both allegation and proof of that fact.
It appears that, upon the hearing, appellee offered in. evidence the record of the circuit court of Saline county, showing the entering into the recognizance upon which judgment was afterward entered, as alleged in the bill, and appellants objected thereto, for the reason that it did not show that after the reversal of a judgment of conviction against said John Quinn by this court, and the remandment of the cause, the circuit court had ordered the redocketing of the case, or that said John Quinn or his attorney had been notified of an intention to redocket the same. That objection was overruled, and it is now insisted that said record was improperly admitted in evidence. If it be conceded that the statute requiring notice and an order redocketing a case in the trial court after remandment by this or the Appellate Court is applicable to criminal cases, still the objection here urged is without force, for the reason that the record does show that the case was in fact redocketed, and that the defendant, John Quinn, with his said sureties, appeared in open court and entered into said recognizance. By so doing he waived all notice and a formal order re-instating a case, if such notice and order were necessary. Neither he nor his sureties could afterwards be heard to question the validity of the recognizance for want of such preliminary steps in the ease. “The law clothes the judge with jurisdiction of the subject matter, and when the prisoner was before him, no matter how he came there, he had jurisdiction of his person, and then his jurisdiction was complete.” Mix v. The People, 26 Ill. 32.
Harris v. The People, 128 Ill. 585, in no way conflicts with what is here said. The defendant and his sureties, by voluntarily appearing in open court and entering into bond for his appearance at a future time, did not, in any sense, attempt to confer jurisdiction upon the court of the subject matter, or to change the mode of trial authorized by law. That a party can give jurisdiction of his person to a court having jurisdiction of the subject matter, by consent, in eases civil or criminal, is so clear that it admits of no argument. Moreover, the judgment rendered upon the recognizance, which'is the basis of this proceeding, can not be attacked collaterally. No principle is better settled than that a judgment can not be attacked in a collateral proceeding for mere errors or irregularities in the proceeding by which it was obtained. We entertain no doubt as to the correctness of the ruling of the circuit court upon the admissibility of the record objected to.
The decree of the circuit court found that Washington Quinn had an estate of homestead to the extent of $1000 in the lands found to have been fraudulently conveyed, and directed the master in chancery, in making the sale ordered, to proceed in accordance with the law in relation to the homestead estate. Counsel for appellants contend that the effect of this decree is to take the homestead so found in Washington Quinn, from his grantee, and force it back upon him. Such is not the scope of the decree. When the homestead is set off the conveyance will, under this decree, be good as to it, though fraudulent and void as to the remainder of the premises. It was clearly right to order the master in chancery, who was directed to make the sale, to set off the homestead. (Cummings et al. v. Burleson et al. 78 Ill. 281.) It would have been his duty, under the terms of the decree, to do so without specific directions. Ammondson v. Ryan, 111 Ill. 506; Mitchell et al. v. Sawyer et al. 115 id. 650.
Some other grounds of reversal are urged in the brief and argument of counsel for appellants, filed in the Appellate Court and re-filed here, but we do not consider them tenable. They were properly overruled, for the reasons stated in the opinion of the Appellate Court.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
