Andrews v. Bernhardi

Mr. Justice Breese delivered the opinion of the Court: This was ejectment, in the Rock Island circuit court, by Wells Andrews, plaintiff, and against Carl Bernhardi, defendant, to recover the possession of the west thirty feet of lot 8, in block 14, of the old town, now city, of Rock Island, which plaintiff claimed to own in fee. The general issue was pleaded, and the same tried by the court, by consent, without a jury. The court found for the defendant, and rendered a "judgment against the plaintiff for the costs, to reverse which he appeals. Appellant claimed the premises as sole heir at law of his father, Robert H. Andrews, deceased, and the defendant claimed by mesne conveyances from the' purchaser at the sale of the real estate of the deceased, sold by order of court to pay the debts of the deceased. These proceedings are attacked by appellant, and it is insisted they do not show jurisdiction in the county court over the person of appellant to make the order of sale. It appears, appellant was an infant when his father died, and he was put in charge of his grandfather, in Tazewell county. His mother, soon after the death of Andrews, married a Mr. Amos Avery, and left Rock Island county. A point is made by appellant, that no process was sent to the county of the residence of the heir at law, and by so doing to obtain jurisdiction of his person. A satisfactory answer to this is, that the record of the proceedings in the county court does not show that the minor heir at law, the defendant in the petition, was a non-resident of Rock Island county, and he was not proceeded against as a non-resident, hence there was no necessity of sending process to another county. There was no fact stated in the petition to prompt this course. In a collateral proceeding, such as this, it is sufficient that the decree recites that due notice was given. In such proceeding this finding is conclusive, and can only be rebutted by evidence in the record, not by extraneous proof. The cases in this court are numerous on this point. Donlin v. Hettinger, 57 Ill. 348 ; Osgood v. Blackmore, 59 ib. 261; Barnett v. Wolf, 70 ib. 76; Logan v. Williams, 76 ib. 175, and many others. The notice was sufficient, as found by the decree of the court ordering the sale of this lot to pay debts. The fairness of the sale is not impeached, nor any subsequent proceedings under it. The purchase by the defendant was for a full consideration, and his title so obtained must be recognized as paramount. The judgment of the circuit court is affirmed. Judgment affirmed.