Fergus v. Tinkham

Mr. Justice Breese delivered the opinion of the Court : The objections made to the decree in this case are : 1st, that sufficient notice had not been given to the non-resident party of the pendency of the suit; 2d, that no proof was made of the exhibits, and that the mortgage was not acknowledged ; and 3d, a sum larger than the amount claimed by the bill was decreed to complainant. As to the first objection, the facts are, there were full four successive weeks’ notice by publication, as the statute requires. The first publication was on the twenty-fourth day of May, 1861, and the last on the twenty-fourth .of June, 1861, four full weeks; but the first publication was not sixty days before the return day of the summons, which was the first Monday in July, 1861. The publication was only as to White, and he alone can make the objection, that it was not sufficient to charge him with notice. The other defendants were personally served. On the second point, the plaintiffs in error, Fergus and wifes in their joint and several answer, admit they executed and acknowledged the mortgage, thereby rendering proof of those facts unnecessary. As to the remaining point, it will be seen by, the complainant’s bill that he claimed interest only from January to July, and such is the structure of that branch of his case. He has recovered interest for seventeen days in December, 1859, amounting to sixty dollars, which he did not claim in his bill. His recovery does not correspond with his allegations, but goes beyond them. On the authority of Chaffin v. Heirs of Kimball,23 Ill 36; Rowan v. Bowles, et al. 21 ib. 17; Morgan v. Smith, 11 ib. 200; White v. Morrison, ib. 366; and Ohling v. Luitjens, 32 ib. 23, the decree must be held erroneous, and must be reversed and the cause remanded. Decree reversed.