Shannahan v. Stevens

Mr. Justice Schoketeld delivered the opinion of the Court: Bridget Shannahan sought, by her bill in chancery in the circuit court against Lydia Stevens, administratrix of the estate of Pelick Stevens, deceased, to enjoin the sale of her real estate which was then threatened under a power in a mortgage executed by herself and her husband, Patrick Shannahan, to Pelick Stevens, in his lifetime, to secure alleged indebtedness of her husband. The ground upon which she alleged that the sale should be enjoined is, that after deducting certain amounts of the alleged indebtedness which are for usurious interest, the debt has been paid. Patrick Shannahan was not a party to the bill. The allegations of the answer denied the usury charged, and affirmed the existence of unpaid indebtedness to a considerable amount. Both the bill and. the answer were sworn to. At the February term, 1884, of the circuit court, a decree was entered dismissing the bill of complaint, pursuant to a stipulation purporting to be signed by Bridget Shannahan, and at a later day, during the same term of the court, a motion was made orally, but entered upon the judge’s docket by attorneys, on behalf of Patrick Shannahan, as husband and co-mortgagor of Bridget Shannahan, to set aside this decree of dismissal, and to allow him to intervene in the case as a co-complainant. No decision of this motion was made, and the entry thereof remained upon the ducket, without any order being made in respect thereto, until the May term, 1886, of the court. At that term, Patrick Shannahan, and his two sons, T. Patrick Shannahan and William J. Shannahan, who united with him as sole heirs-at-law of Bridget Shannahan, who was then deceased, presented their petition in writing to the court, in which they recited the steps taken in the case, as before stated, and then averred that at the time of the alleged signing of said stipulation “Bridget Shannahan was not in a disposing condition of mind, but, on the contrary, then was, and for a long time previous thereto had been, in an almost imbecile condition, and wholly incompetent to enter into any agreement whatever,” and they charge that the stipulation was obtained from her by fraud and collusion of parties named, acting in the interest of the defendants. The petition then shows the death of Bridget Shannahan shortly after the decree was rendered, leaving the petitioners, her husband and sole heirs-at-law. Affidavits were filed at the same time, in support of these allegations. The court refused to set aside the decree dismissing the bill and to allow the intervention of Patrick Shannahan, and this ruling was affirmed by the judgment of the Appellate Court. In our opinion Patrick Shannahan had a right to be made a party to the bill of Bridget Shannahan. He was the debtor, and therefore an indispensable party to the accounting which must be taken to determine whether thfe relief prayed should be granted. ' Moreover, he had a dower interest in the real estate to be affected by the decree. A motion may be made instead of suing out a writ of error coram nobis, at the same term at which a decree is rendered, to correct errors which, at common law, could be corrected only upon the return of that writ. (Sloo v. Bank, 1 Scam. 428; Life Association v. Fassett, 102 Ill. 315.) And so we have held that a decree against an infant not properly before the court may be thus corrected. (Peak v. Shasted, 21 Ill. 137; Hall v. Davis, 44 id. 494.) The case was within the control of the court until the end of the term at which it was rendered. Bolton v. McKinley, 22 Ill. 203; Edwards v. Irons, 73 id. 583. Patrick Shannahan having the right to be made a party to the bill, necessarily retained the right to move the court to become such upon the record at any time while the record was within the control of the court. (Marsh v. Green, 79 Ill. 385.) The motion not having been decided by the court at the term when made, was continued, by operation of law, 'from term to term, until decided. 1 Starr & Curtis, chap. 37, sec. 21, p. 707; People v. Gary, 105 Ill. 264. We think the motion might be made orally, as it was. The petition presented at the May term, 1886, of the court, did not in anywise supersede or derogate from the motion made at the term when the decree was entered. It is immaterial that no affidavits iñ support of the motion were presented until the May term, 1886. It is sufficient that they were presented when the court considered and decided the motion. We think the court erred in not setting aside the decree dismissing the bill and allowing Patrick Shannahan to be made a co-complainant upon the bill. The judgment of the Appellate Court and the decree of the circuit court are therefore reversed, and the cause is remanded to the circuit court, with direction to that court to set aside its decree rendered at its February term, 1884, dismissing the bill of Bridget Shannahan. Judgment reversed.