Culver v. Phelps

Mr. Justice Scholfield delivered the opinion of the Court :• This was a bill in equity, by appellee, against appellant, in the Superior Court of Cook county, to set aside certain deeds as clouds upon appellee’s title. " The deeds sought to be set aside are a sheriff’s deed to the Mechanics’ National Bank of Chicago, a deed of the Mechanics’ National Bank of Chicago to Francis R. Butler, and a deed of Francis R. Butler to appellant, W. Irving Culver, each purporting to convey title to lot 10, in block 10, in the “Ironworkers’ Addition to South Chicago.” Appellee claims title to the lot under a deed from William H. Colehour, who is conceded to have been the original owner of the lot. The sheriff’s deed to the Mechanics’ National Bank of Chicago was executed by virtue of a sheriff’s sale under an execution issued upon a purported judgment of the Superior Court of Cook county, rendered at its November term, 1875, namely, on the 6th day of December, 1875, in favor of the Mechanics’ National Bank of Chicago, and against Charles W. Colehour and William H. Colehour, for $4000 damages. The sole question in the case is whether the Superior Court had such jurisdiction of the person of William H. Colehour as authorized it to render that judgment at that time, for both Francis R Butler and the appellant, having been attorneys for the bank in that suit, occupy no different position, as respects that question, than that occupied by the bank. McLean County Bank et al. v. Flagg, 31 Ill. 290. William H. Colehour presented his petition to the Superior Court of Cook county on the 16th day of April, 1884, wherein he alleged, among other things, as follows : “That he, said petitioner, is one of the defendants in the above entitled cause, in which cause judgment was entered against both defendants on the 6th day of December, A. D. 1875; that part of the record in said cause has been lost or destroyed,—that is to say, the summons in said cause, served on your petitioner and on Charles W. Colehour, his co-defendant, together with the return of the sheriff of Cook county thereon indorsed, and the indorsements of filing thereof, upon which summons and return of service, the order entering the default of the defendants, and the judgment in the said cause, were based; that a certified copy of said summons and return, and the indorsements of filing thereof, can not be obtained by your petitioner, nor any certified copy of any part of said summons, return or indorsement. Your petitioner further states, that * * * the following is a true copy of said summons, and the return of the sheriff thereon indorsed: [[Image here]] u‘Tlie People of the State of Illinois, to the sheriff of said county—gree ting: “ ‘We again command you, that you summon Charles W. Colehour and William H. Colehour, if they shall be found in your county, personally to be and appear before the Superior Court of Cook county on the first day of the term thereof to be holden at the court house, in the city of Chicago, in said Cook county, on the first Monday of October next, to answer unto the Mechanics’ National Bank of Chicago in a plea of trespass on the case uj>on promises, to the damage of said plaintiff, as it is said, in the sum of $4000. And have you then and there this writ, with an indorsement thereon in what manner you shall have executed the same. [[Image here]] “Your petitioner further states, that at the time your petitioner made such copies, said summons was among the papers and files of said cause in the custody of the clerk of this court, and your petitioner made a copy of said summons and return in the office of the clerk of this court, as aforesaid, and that said summons so copied, and of which the above and foregoing is a true copy, is the only summons in said cause ever served on this petitioner.” Appellant and the bank were made defendants to this petition. Its prayer was, that the court make an order “reciting what was the substance and effect of said summons, and return of service, and filing of the same, according to the provisions of the statute in such case made and provided.” Eev. Stat. chap. 116, sec. 2. The hank and appellant, separately, answered the petition, putting in issue its material allegations. Appellant, in his answer, admitted that “upon examination of the papers in said cause made by him, the writ'of summons issued in said cause that was served on said petitioners is not to be found thereinand he alleged, among other things, “that there was more than one summons issued in said cause, and that, as he is advised and believes, the said petition does not show nor give a copy of the summons duly issued in said cause, upon which service was had upon said petitioner, and judgment rendered against him. And upon like information and belief he denies that the writing set out in said petition, purporting to be a copy of the summons in said cause served on said petitioner, is a true and correct copy of the summons served on him. ” Eeplications were filed to the answers, and the cause was heard and decree rendered therein at the June term, 1884, of the court. The court found and decreed in accordance with the prayer of the petition, and restored the summons and service thereof, upon which judgment was rendered, literally as before herein set out as being recited in the petition. The case was then taken, by the appeal of the present appellant, to the Appellate Court for the First District, and that court, by its judgment, affirmed the decree of the Superior Court, and from the last named judgment the same party brought the case by appeal to this court, and the judgment of the Appellate Court was here affirmed pursuant to the opinion filed on the 25th of January, 1886, and that judgment has never been set aside. Culver et al. v. Colehour, 115 Ill. 558. It is not pertinent to the question now under consideration to determine what power is vested in the Superior Court by chapter 16 of the Devised Statutes of 1874, in relation to burnt records, nor what evidence is admissible upon the hearing of a petition filed pursuant to the provisions of that chapter. It is only important to know what was decreed in the case supra, for that decree is res judicata in the present case, no matter whether, it was authorized by the law and the evidence or not. Bradish v. Grant, 119 Ill. 606; Attorney General v. Chicago and Evanston Railroad Co. 112 id. 538; Hanna v. Read, 102 id. 596; Tilley v. Bridges, 105 id. 336. It has been seen that the decree supra restores the summons which was served upon the defendants in the case before judgment was rendered, and not merely a summons that was served in that case. The issue was made by the answer, that the summons set out in the petition was not the summons served upon the defendants pursuant to which judgment was rendered. But the court found against the answer, and so we must now accept it as a fact, that the only summons served upon the defendants before judgment was rendered was this summons. The case is therefore within the rule laid down in Osgood v. Blackmore, 59 Ill. 265, and Barnett v. Wolf, 70 id. 76. The record contradicts the recitals in the judgment “that due personal service of process of summons issued in said cause has been had on the defendants for more than ten days before this term, ” (the November term, 1875,) and shows that the only summons served in the case was one issued on the 6th of October, 1875, returnable to the twelfth term of the court thereafter to be held, namely, to the October term, 1876, of the court. The summons being returnable at a term other than the first term, and to be held more than three months after its date, was void, (see Rev. Stat. 1874, chap. 110, sec. 1, and Hildreth v. Hough, 20 Ill. 331,) and in no view can it be held to confer jurisdiction of the person to render judgment at the November term, 1875. We think the court below, therefore, properly decreed that the deeds be set aside as clouds upon complainant’s title. The decree is affirmed. Judgment affirmed.