213 Ill. App. 566 | Ill. App. Ct. | 1919
delivered the opinion of the court.
The defendant in error, Sterling National Bank, owned a real estate mortgage and notes secured thereby executed July 15, 1914, by Elizabeth Martin, the plaintiff in error, and at the October term, 1917, of the Circuit Court of Whiteside county, obtained a decree finding the amount due $5,657.90, and providing for sale and redemption of the premises under the Amendatory Act of 1917 (Session Laws 1917, 558). It is expressly provided in that act that it shall not apply to sales of real estate made pursuant to decrees foreclosing mortgages or trust deeds executed prior to July 1,1917; therefore its provisions should have been disregarded in this proceeding. After the final adjournment of said October term, and at the next January term, of said court, an order was entered setting aside the former decree, and another decree was filed providing for sale and redemption of the premises under the provisions of prior statutes applicable to this case. Both decrees in the judicatory part following the findings of the master in chancery, to whom the controversy had been submitted, in effect confirmed his report and, except the different provisions for enforcing the obligation of the plaintiff in error, they are substantially alike. The sum named in each decree was reached by adding to the amount found due by the master accrued interest to the date of the decree. Following the second decree the premises were sold by the master in chancery and the sale reported, leaving a deficiency due the complainant of $128.08. Under a provision in the mortgage authorizing the appointment of a receiver in case of a deficiency, the court appointed one to take possession of the property and collect the rents. Elizabeth Martin brings the record here for review. No error is suggested in any finding on any subject of dispute between the parties. In each decree all matters that might be controverted, like the existence and maturity of the mortgage securing the debt, the right to foreclose the same and the right of the complainant to have a decree for the sale of the mortgaged premises to pay the debt, interest and costs, were satisfactorily settled. Neither is there any question about the sale, the deficiency, and the appointment of a receiver, except it is insisted that the second decree was and is entirely void because it is said the decree at the October term was final, and the court had no power to enter another decree at a subsequent term. It is true the first decree was a final, appealable decree, and the court had no power to change its findings at a subsequent term, and any attempt to do so should be held entirely ineffective and be disregarded. (Kirby v. Runals, 140 Ill. 289; Gray v. Ames, 220 Ill. 251; DeGrasse v. H. W. Gossard Co., 236 Ill. 73.) It is out of the power of the court to amend or correct a decree in any matter affecting the merits after the adjournment of the term (23 Cyc. 861). But the limitation of the court’s control to the term at which the decree was rendered does not apply to provisions inserted for the purpose of carrying the decree into effect. Such provisions ínay be amended or inserted at any time. (16 Cyc. 506.)
In Union Trust Co. of Indianapolis v. Curtis, 182 Ind. 61, 105 N. E. 562, the court said: “While the essential judicatory part of a decree may not be changed by a court after the term when it was rendered, those parts which are directory as to the mode of its execution may be; and of such a nature is the amount of money required to be bid for the property.” Citing Farmers’ Loan Co. v. Oregon Pac. R. Co., 28 Ore. 44, 40 Pac. 1089; and Royal Trust Co. v. Washburn, B. & I. River R. Co., 113 Fed. 531, and quoting from the latter case: “A decree of foreclosure is, in a sense, a final decree, adjudging the rights of the parties as between themselves, but a decree of foreclosure is something more than that. It is not only a decree adjudging those rights, but it is also a sort of equitable execution, providing the manner in which the decree shall be enforced, and for the assertion of the rights declared; and the provisions of a foreclosure decree with respect to the manner and the terms of the sale are part of the terms of the execution of the decree, and not of the decree, so far as adjudging the rights of the parties. * * * It is always within the province of the court * * * to modify the terms of the decree so as justly and equitably to enforce its judgment, and render to the parties that to which they are entitled.”
It is said in the text of 5 Encyc. PI. & Pr. 1057: “Although the court has no power to amend, modify or alter the principles of a final decree after the expiration of the term at which it was rendered, it nevertheless retains the inherent right to modify, by a subsequent order, the time of its enforcement or manner in which it shall be enforced.”
Authorities are collected in a note in L. R. A. 1915 A 699, showing numerous holdings that a court may, after entering a final decree of foreclosure, modify that part of the decree relating to the manner and terms of sale. The right to make such alteration is recognized in Mariner v. Ingraham, 230 Ill. 130.
It follows that the order of the court setting aside its decree of the October term was of no effect as to the judicatory part, which remained in full force notwithstanding that order. The second decree neither added nor subtracted from the first in reciting its findings on the merits of the case. The first decree was manifestly wrong, and the second right in orders for sale and redemption. If those provisions were subject to amendment at a subsequent term, the second decree was in effect only a proper amendment of the first. The amendatory act differs from the former act, broadly speaking, in providing for redemption before instead of after the sale of the premises. The controlling question is whether those provisions in the first decree relate only to its enforcement. It was held in Delahay v. McConnel, 5 Ill. (4 Scam.) 156, that a statute requiring mortgaged premises to be sold for two-thirds of their appraised value and allowing a redemption of the sale relates only to the mode of carrying the decree into effect. We conclude the provisions for sale and redemption in the decree of the October term were subject to change or amendment at a subsequent term.
Notwithstanding the form in which the change was accomplished, it should be treated here in accordance with its effect. The action of the January term was valid in so far as it came within the power of the court, and invalid in so far as it went beyond the court’s authority to change the previous decree. The sale was, in effect, made under the first decree so properly amended by the second. This leaves no substantial error in the record.
It is said the record shows no notice to plaintiff in error of the action of the court at the January term. We do not regard that material. While notice to opposite counsel in such matters may be usual under the rules and practice of courts, we know of no law requiring it to be given or shown of record. The decree of the October term as modified at the January term is affirmed.
Decree affirmed.
