43 Ill. 318 | Ill. | 1867
delivered the opinion of the Court:
When the solicitors for plaintiffs in error entered their appearance, and agreed to the change of venue in the case, the service of process or the requisite publication of notice of the pendency of the suit became unnecessary. The purpose of service or publication is to bring parties before the court. But when they voluntarily enter their appearance, service or publication is thereby rendered entirely unnecessary. The language of the stipulation is broad enough to embrace, and does embrace, all of the defendants to the suit. It says the parties came by their solicitors. It does not state that only a portion of the parties came, but fails in any mode to limit the number. If not previously in court, plaintiffs in error then entered their appearance, and this renders any consideration of the sufficiency of the .publication unnecessary.
This also disposes of the objection that the Circuit Court of Montgomery county failed to acquire jurisdiction by the order changing the venue of the case. If the parties were all in court, and we have seen they were, it must be held that the order of the Shelby Circuit Court changing the venue, based upon the consent of the parties, was binding, and fully conferred jurisdiction on the Circuit Court of Montgomery county.
It is insisted that this bill is defective for the want of proper parties. It appears from the allegations in the bill, that complainant had been induced by the false and fraudulent representations of Radcliff to convey the premises, in the winter of 1857, to the Illinois Central and the Terre Haute, Alton and St. Louis Railroad companies. That Radcliff afterward induced complainant by fraud, in April, 1857, to again convey them to David Y. R. Radcliff, which deed he delivered to Frederick E. Radcliff. That in October, 1858, David Y. R. Radcliff conveyed the premises to Wyman for the nominal consideration of five dollars, with the intent of defrauding complainant. The bill was dismissed as to the railroad companies. It is urged that from these allegations it is apparent that these corporations were necessary parties.
If it had appeared that the deed had been delivered to these roads or to their agent, then there would be force in the objection. But the bill alleges, that it was delivered to Frederick E. Radcliff, and. that he refused to return it to complainant, but held it as a cloud on his title. The default against these companies operated as an admission of the truth of these allegations, and they certainly fail to show that these bodies had any interest in the premises. And no part of the record denies these allegations or sets up or discloses facts showing any interest in these corporate bodies.
It is again insisted, that the bill discloses the fact that other parties had liens on the property. It appears that their liens were created for work and labor performed and materials furnished in erecting the building on the premises, and that they arose out of contracts made with Frederick E. Radcliff. And if so, this was under claim of an interest in the premises, derived through and held under Radcliff, and which operated upon and attached to the title .flowing from the defendant in error. These liens, then, bound his title to the premises, and having an interest in the subject matter of the suit, they were necessary parties. Had the liens been created under, and had they attached to an independent adverse title, it would have, no doubt, been otherwise.
It is not an answer to say, that defendant offered in his bill to convey so much of the ground as the house upon which the labor was performed and to which the materials were furnished, occupied. They had a right to be heard as to the extent of their liens and in the determination of that question. But even if the court could have determined the extent of the liens, in the absence of these persons as parties, still the decree is erroneous in decreeing the possession of the entire premises to defendant in error, and that any person occupying the same or any portion of it should surrender to defendant in error. He had disclosed the fact that other persons had such liens, and that they had obtained decrees for their enforcement. And for ought that appears, these persons may have purchased under these decrees and been in possession, by virtue of the sale to satisfy the liens. The court below did not ascertain what portion of the property defendant in error should convey to persons holding these liens, as he, in his bill, had offered; but decrees the possession of the entire block to him. For the want of proper parties the decree of the court below must be reversed and the cause remanded, with leave to amend.
Decree reversed.
