Vahle v. Brackenseik

Mr. Justice Shope delivered the opinion of the Court: This was an application made to the Circuit Court of Adams county, to re-docket a cause lately pending therein, which being allowed, appellee thereupon moved for a writ of assistance. The original cause was a proceeding in chancery, by John H. Duker et al. against appellants and others, in said court, to foreclose a mortgage upon certain lands, etc., in which a decree of foreclosure and sale was rendered, and containing the usual order for a deed, and the delivering up of the mortgaged premises, upon production, to the parties in possession, of such deed if no redemption should be máde, etc. Appellee became the purchaser at the sale, and redemption not having been made, the master made and delivered to him a deed for the premises, which he produced to appellants, and also copy of the decree, and demanded possession, which they refused to surrender. The court awarded the writ of assistance. It was insisted in the Appellate Court that the record did not show service upon the appellant, Yahle, in the original proceeding, whereupon appellee suggested diminution of the record, and asked leave to file additional record, which was allowed by that court. Subsequently appellant moved to strike the amended record from the files, which motion was overruled; and this action of the Appellate Court is assigned as error. The amended record was duly certified by the clerk of the Circuit Court of Adams county, and shows service upon Yahle, and all parties in interest. The ground upon which it is urged that the Appellate Court erred, is that the amended record was permitted to be filed instanter, without notice to appellants, and without the issuance of certiorari. The practice adopted by the Appellate Court was entirely proper and consistent with the uniform practice in this court. Appellants being in court, were bound to take notice of the steps taken in the cause. ' But if this were not so, it is apparent they had notice of the filing of the amended record, and were heard on their motion to strike it from the files. When the amended record has been made and properly certified, and ready to be filed, the issuance of a certiorari is unnecessary, and its issue would entail unnecessary expense. The court should, having proper care that the parties be not prejudiced, allow the record to be filed without the writ. Rowley v. Hughes, 40 Ill. 71; Bergan v. Riggs, id. 62. It is also objected, that it appears from the transcript that the decree confirming the deed was rendered by one having no judicial authority, or that two judges of the court presided in the same court at the same time. The convening order of the Circuit Court of Adams county, at the June term, 1891, shows that the.Hon. Wm. Marsh was present as the presiding judge. The decree was rendered on the 3d day of July, 1891, one of the days of said June term of said court, and appears to have been signed by and rendered by Oscar P. Bonney. The Appellate Court, as well as this court, will take judicial notice of who are the judges of the various courts of record of the State, and of their terms of office, and the organization and jurisdiction of such courts. Russell v. Sargeant, 7 Ill. App. 98; Ellsworth v. Moore, 5 Ia. 486; Upton v. Paxton, 72 id. 295; Tucker v. State, 11 Md. 322; Ex parte Peterson, 33 Ala. 74; Kilpatrick v. Com., 31 Pa. St. 198. The court of its own motion will advise itself, so as to verify matters of which it is required to take judical notice. City of Rock Island v. Cuinely, 126 Ill. 408; 1 Greenlf. on Ev. 4-6. We aré required, therefore, to take judicial notice that the Hon. Wm. Marsh was one of the judges of the sixth judicial circuit, in which said county of Adams is situated, when the June term, 1891, of' said circuit convened, and that on the 3d of July, 1891, the day of the entry of said decree, his term of office had expired, and that Oscar P. Bonney, who purports to have rendered said decree as judge of said court, was his successor in office. It is next objected that prior to the application for the writ of assistance appellee had brought forcible detainer under the sixth clause of the Forcible Detainer act, in which judgment had been rendered for appellant. The contention is, that appellee is thereby barred from obtaining the assistance of the court of equity, and the court erred in awarding the writ. The application for the writ was not the institution of a new suit, but was auxiliary or incidental to the decree previously entered, whereby the rights of the parties had become fixed and determined. The holding in this case conformed to the rule stated in Oglesby v. Pearce, 68 Ill. 220, and cases there cited. Appellee, as grantee in the master’s deed, showed by affidavits filed that after the confirmation of the deed, and on the 9th day of December, 1891, he produced said deed to appellants, and demanded possession of the premises, and afterwards, on December 26, 1891, delivered to appellants, and each of them, a copy of the decree for sale, etc., entered in said cause, and again demanded possession of said premises. The forcible detainer proceeding was commenced August, 27, 1891. It is clear, therefore, that the right of appellee to the writ of assistance, shown on this hearing, had not accrued at the time of the institution or trial of the forcible detainer suit. He had not then complied with the decree, by producing to appellants said master’s deed, or served them with a copy of said decree as therein provided. There is no pretense that the question of appellee’s right to the possession of said premises, after complying with the decree, was litigated in the forcible detainer proceeding. This precise question was before us, and determined in Cochran v. Fogler, 116 Ill. 194, and that case is conclusive of the point. We are of opinion that the judgment in forcible detainer did not bar appellee’s right to the writ of assistance, upon his subsequently complying with the decree. lío new rights had been acquired by appellants since the rendition of the original decree, and the court was empowered, as against the parties to that proceeding, to re-docket the cause, and enter such order as was necessary to execute its decree by the delivery of possession of the premises, etc. Kessenger v. Whittaker et al., 82 Ill. 22; Aldrich v. Sharp, 3 Scam. 261; Jackson v. Warren, 32 Ill. 340. The judgment of the Appellate Court is affirmed. Judgment affirmed.