221 Ill. 541 | Ill. | 1906
delivered the opinion of the court:
It is first contended that the service upon the defendant is not sufficient, in this: that the notice of the commencement of suit served upon the defendant did not state the term of court at which he was to appear and defend. The notice which was served upon the defendant was attached to a copy of the bill, and the bill recited the suit was commenced to the November term of the superior court, and asked that the defendant be summoned to appear at that term and defend, etc. The notice and copy of the bill formed but one instrument, and the law required them to be considered together, and not separately, and if, from a consideration of both the notice and the copy of the bill, the term of court at which the defendant was required to appear and defend was clearly apparent that was sufficient. In Cloyd v. Trotter, 118 Ill. 391, the defendant was served by a notice of the commencement of suit and a copy of the bill, and the point was made that as the notice was not signed, the court, by the service of such notice and the copy of the bill, did not acquire jurisdiction. It was held, however, that as the notice was attached to a copy of the bill and the bill was signed, that was sufficient, as the notice and copy of the bill were properly treated as one instrument.
It is also said the notice and copy of the bill were not served on the defendant thirty days before the first day of the November term, and for that reason the court did not acquire jurisdiction.' A default was not entered against the defendant until the December term, and he was served by notice and copy of the bill more than thirty days prior to the first day of that term. Section 16 of the Chancery Code provides: “Every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required in this act, shall be held to except, demur, plead or answer on the return day of the summons; or if the summons is not served ten days before the first day of the term at which it is returnable, by the first day of the next term; or in case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court; or, in default thereof, the bill may be taken as confessed.” More than thirty days intervened between the time of the service of the notice and copy of the bill upon the defendant and the first day of the term at which the default was entered. A sufficient length of time therefore intervened between the date of service and the date of default, and the court had jurisdiction and was authorized to proceed with the suit.
It is further urged that it does not appear that the affidavit proving the service of notice and copy of bill was sworn to before an officer authorized to administer oaths. The affidavit was sworn to before a justice of the peace in the State of Virginia, and the clerk of the circuit court of the county in which said justice resided attached his certificate, under his official seal, to the jurat of the justice, that the justice was authorized to take acknowledgments and administer oaths. The certificate of the circuit clerk was sufficient proof of the authority of the justice to administer oaths, and the affidavit of proof of service was sufficient. Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312.
It is next contended that the superior court, for the want of personal service upon the defendant, was without jurisdiction to require the defendant to convey the undivided one-half of said lots to the complainant and to enter a personal decree against the defendant for the amount found due the complainant. The property of the co-partners was located in this State, and the court had ample authority to deal with that property. The effect of the decree was to require .the conveyance of one-half of the lots belonging to the partnership to the complainant, and to direct that the amount found due the complainant should be made out of the undivided one-half of said lots the title of which remained in the defendant. While the court was powerless to enter a personal decree against the defendant, it had power to deal with the partnership property situated in this State. The decree was not void, therefore, for want of jurisdiction. In Cloyd v. Trotter, supra, which was a bill in chancery to remove a cloud from the title of real estate, on page 394, the court said: “There was no appearance in the court below, either by defendant or any solicitor for him, and it is not perceived how that court obtained jurisdiction of his person so as to render a personal decree against him. * * * So far as the property situated within the jurisdiction of the court is involved, the court had jurisdiction to decree concerning it, and defendant, and all parties claiming through or under him, would be bound.”
It is lastly said that the proof is not sufficient to sustain the decree. The allegations of the bill were sufficient to authorize the court to grant the relief prayed for and which was granted by its decree, and the defendant being in default and having failed to except to the master’s report, and a decree pro confesso having been entered against him, he is precluded from questioning the competency or sufficiency of the evidence to support the decree. Roby v. Chicago Title and Trust Co. 194 Ill. 228; Dunfee v. Mutual Building and Loan Ass. of Chicago, 206 id. 133.
Finding no reversible error' in this record the decree of the superior court will be affirmed.
Dgcreg aMrmed-