125 Ill. App. 67 | Ill. App. Ct. | 1906
delivered the opinion of the court.
It is first urged in behalf of appellant that the chancellor in the Circuit Court admitted improper evidence in behalf of appellees and rejected proper evidence offered on the part of complainant. It is to be presumed that the chancellor considered only such evidence as was competent. If we' concede for the sake of the argument that evidence rejected might with propriety have been admitted, it was nevertheless evidence relating to the merits of appellant’s defense against the claim of. appellee Stevens for which the latter obtained judgment before the justice. This evidence as to Stevens’ right to recover is conflicting, and while it may be doubtful whether in fact appellee Stevens was entitled to the commissions he claims or to any commissions, yet in the absence of fraud, accident or mistake that'question must be deemed settled by the judgment of the justice, provided he had jurisdiction of the subject-matter and of the parties. In such case the judgment cannot be collaterally impeached for mere error. Swift v. Yanaway, 153 Ill., 197-203; People v. Seelye, 146 Ill., 189-206—221.
It is insisted, however, that the justice was without jurisdiction to render the judgment complained of, that he did not acquire jurisdiction in the manner provided by law. This contention is based upon the claim that the service by publication under the statute was defective, that the return of the constable does not state, as the statute required, “'the time when and the places where he posted and mailed copies” of the notice. (R. S. chap. 79, sec. 79.) The. return is as follows: “Served the within notice by posting three copies thereof at three public places in the neighborhood of the within named justice, one at 125 South Clark street, one at 107 South Clark street, one at County Building, and mailing a copy of said notice, addressed to the within named defendant at his place of residence, this 8th day of ¡November, A. D. 1902.” It is true this return while stating when and where, the constable posted the copies, does not specifically state precisely where he mailed the copy addressed to the defendant. In Pomeroy v. Rand, McNally & Co., 157 Ill., 176—185, the court considered in a similar case a return in which the constable failed to state “the places where he posted and mailed copies,” and it was held that such failure was not a defect fatal to the jurisdiction of the court. In the case at bar, as in that case, the return shows that the constable did all that was required of him by the statute, that he posted three copies of the notice at three public places in the neighborhood of the justice and mailed a copy addressed to the defendant at his place of residence, and the defect alleged in the present case is that the return does not state “what post'office or mail box he dropped the notice in.” As to that the Supreme Court says: “We do not think these omissions of sufficient importance to render the judgments of the justice of the peace and Circuit Court absolutely void.” It is undoubtedly the rule that where jurisdiction is obtained by publishing a notice to parties interested, the statute must be strictly pursued and its provisions complied with. Yaggy v. City, 194 Ill., 88-90. Here the objection is not that the statute was not observed in the manner of giving notice, nor that the notice was not properly mailed, but that the return of the constable fails to show at what particular mail box out of thousands of mailing places in Chicago he deposited the notice addressed to the defendant at the latter’s place of residence.
It is claimed that appellee Stevens did not make due inquiry to ascertain the proper address of appellant at Brooklyn, to which place the copy of the notice was mailed. There is evidence tending to show that Mrs. South, the garnishee, knew or had in her possession the means of ascertaining the exact place in Brooklyn where appellant’s mail could be sent. There are circumstances stated in the bill, not however so far as we can discover from the abstract of the record proven by competent evidence, which might tend to create an impression that for some reason appellee Mrs. South was not averse to allowing Stevens to recover, and that she did not make any very active effort to help appellant in any way. This, however, falls far short of fraud. As a matter of law Stevens had a right to prosecute his claim in the manner allowed by statute and the mere fact that we may perhaps infer a probability that if he had made an earnest effort to do so he might have ascertained the exact street address in Brooklyn of appellant and failed to do so, is not evidence from which fraud may be inferred. If the statute as to service ivas complied with, it suffices. Strict adherence to the statute may sometimes work a hardship, but this alone does not authorize interference in equity with a judgment regularly obtained.
It is urged that the answer of the garnishee was insufficient to sustain the judgment. The garnishee is not complaining, however, and had she failed to answer at all, judgment could still have been entered against her on default. ¡Nor do we find evidence tending to support the contention that the judgment of the justice was erroneous in the sense of being contrary to law. It appears to be such judgment as the law authorizes, and must be deemed conclusive upon the merits. In People v. Seelye, 146 Ill., 189, supra, on page 221 et seq., it is said: “If a court has jurisdiction of the subject matter and the parties, it is altogether immaterial, where its judgment is collaterally called in question, how grossly irregular or manifestly erroneous, its proceedings may have been; its final order can not be regarded as a nullity and can not therefore be collaterally impeached.”
Finding no material error in the order of the Circuit Court appealed from, it must be affirmed.
Affirmed.
