Schaefer v. Kienzel

Mr. Chief Justice Sheldon delivered the opinion of the Court: This was a bill for the partition of a town lot in the town of West Belleville, brought by Ernestine Kienzel, the daughter and heir-at-law of Gottfried Taubert, deceased, against Justine Taubert, the widow, and Paulina Schaefer, the other daughter and remaining heir-at-law of said Gottfried. There was a decree in accordance with the prayer of the bill. Paulina Schaefer brings the case here on error, and makes the following assignments of error: First—That Paulina Schaefer had not been served with notice, as required by law. It appears from the printer’s certificate, that the first publication of notice was made July 25, 1884. The clerk, in his certificate, says that he mailed a copy of the notice on the 19fch day of July, 1884, it thus appearing, as is said, that the copy was mailed to Paulina Schaefer six days before the first publication of notice was made in the newspaper. The statute requires that the copy of the notice shall be sent within ten days after the first publication. The clerk states in his certificate, in addition, that “within ten days of the first publication of the notice in this cause,” he mailed the copy of the notice. The decree expressly finds that the copy of the notice was sent “within ten days after its first publication.” There was evidently a mistake, here, of the clerk, in writing July 19 instead of July 29. It is objected that the affidavit of non-residence, and the notice, fail in stating the residence of Paulina Schaefer, it being stated as “20th»St. Louis avenue, St. Louis, Missouri,”— leaving it uncertain, it is said, whether the reference, here, of “20th,” is to the number of the house, or to Twentieth street and St. Louis avenue. The requirement of the statute is, that the affidavit shall state “the place of residence of such defendant, if known.” The affidavit does state this, and nothing more was required. A further objection to the affidavit of non-residence is, that the notary public before whom it was made did not authenticate his jurat by his official seal. The affidavit was made before a notary public, in the county in which the court was-held that entertained the partition proceeding. In such ease, it was decided in Stout v. Slattery, 12 Ill. 164, that the jurat of the notary need not be authenticated by his notarial seal,—. that the court would take judicial notice of who the notaries public were in the county in which the court was held. Since that decision the statute entitled “Notaries Public,” (Rev. Stat. p. 721,) requires each notary public to provide himself with an official seal, with which he shall authenticate his official acts. We think this relates only to such official acts as were in the contemplation of that statute. That statute did not authorize notaries to administer oaths and take affidavits. It was a separate statute that did this,—the one entitled “Oaths and Affirmations.” (Rev. Stat. p. 725.) And this statute provides nothing as to any jurat, or mode of authenticating it. We think the decision in Stout v. Slattery still applies, and that it meets the present objection. ■Second—That the circuit court erred in rendering the decree allowing Justine Taubert a homestead in the premises. The bill was taken for confessed, no answer being filed. The-objection is, that the bill does not state facts which show that there was a right of homestead. The bill does allege that “Justine Taubert is entitled to homestead in said premises.” Knapp v. Gass, 63 Ill. 495, answers this objection. The bill there alleged that the widow, Mrs. Knapp, was entitled to dower in the land; and the widow, in her answer, averred that “she is entitled to her dower in the premises, as well as homestead.” No replication was filed. There was the same objection as here,—that there were no facts alleged out of which the right of homestead could arise, but a claim, simply, to a homestead in the premises. It was held, that failing to reply to the claim set up in the answer was an admission by the complainant that the widow had a homestead right in the premises, and that the allegation in the answer that the widow was entitled to homestead, was sufficient to warrant a decree for its allowance. Third—That the circuit court erred in approving the commissioner’s report—that the report was manifestly wrong. The report found that the property was so circumstanced that a partition thereof could not be made without manifest prejudice to the proprietors, and set apart to Justine Taubert, as her homestead and dower, a life estate in all of the premises, and valued the premises, subject to such life estate, at $300. We fail to perceive that the report was not warranted by the statute, or that it should not have been approved. Fourth—The final objection is, that the court erred in directing the master in chancery to pay (without stating the amount) complainant’s solicitors a reasonable fee,—that this left the master to decide upon the reasonableness of the fee. By the final report of sale of the master, the solicitor’s fee was fixed by the master at $15, and this report was approved by the court. This approval of the master’s report obviates the objection made. The decree of the circuit court will be affirmed. Decree affirmed.