Fitch v. Gray

Mr. Justice Phillips delivered the opinion of the court: There are but four questions presented on this record which it will be necessary for us to notice: First, whether an affidavit on which to base publication of notice for causing an execution to issue may state the residence of the heirs based on information and belief; second, whether, on a published notice of an intention to have an execution issued on the 4th of October, 1880, an execution could issue at a later-date; third, whether the notice would be valid when published without being signed by any party; and fourth, did the court err in refusing leave to file a bill as a substitute for the original bill, with its various amendments, and the supplemental bill. Section 39 of chapter 77, as amended in 1875, (Hurd’s Stat. 1889, p. 845,) provided that when a person shall die after the rendition of judgment against him is obtained in a court of record, “execution may issue against the real estate of such deceased person” without reviving the judgment against his heirs or legal representatives, provided that no execution shall issue until after the expiration of twelve months from.his death; and no sale shall be had on such execution until the person in whose favor the judgment is sought to be enforced shall give to the executor or administrator, or, if there be neither, to the heirs of the deceased, “at least three months’ notice of the existence of such judgment or decree before issuing execution or proceeding to sell, which notice shall be in writing when the parties required to be notified reside or may be found within the State and their place of residence known, otherwise publication notice shall be given in the manner directed for chancery proceedings in sections 12 and 13 of an act entitled ‘An act to regulate the practice in courts of chancery,’ approved March 15,1872.” If there is an administrator or executor, and he resides in this State, the only notice required to be given is to be given by the person in whose favor it is sought to enforce the judgment against such executor. If there is no executor, then the notice is to be given to the heirs if they reside in the State, and the only provision in relation to the notice is, that it shall be given at least three months before taking out the execution, and all the notice is required to contain is a statement of the existence of such judgment. If, however, the parties do not reside in the State, then there shall be a publication notice made in accordance with the provisions of the Chancery act for giving notice by publication,—that is, by sections 12 and 13 of chapter 22 of the statute. The affidavit of Gray, the assignee of the judgment, sets out the facts upon which to base the publication of notice. It states he was the owner of the judgment; that John Fitch died on the 20th of July, 1878, at Nettle-ton, Kansas; that more than twelve months had since expired; that there is no executor or administrator of the estate, to his knowledge or belief; that he left him surviving the appellants, “each.of whom, as this affiant is informed and believes, lives without the State of Illinois, and cannot be served with personal, written notice of the existence of the judgment in the said above entitled cause* as provided by section 39, chapter 77, of the Revised Statutes of the State of Illinois of A. D. 1874, as amended by the act of the legislature of the State of Illinois approved April 2, A. D. 1875;. and this affiant is informed and believes that the aforesaid children of the decedent reside at Nettleton, in the State of Kansas; and affiant further says that he is informed and believes that the above named children of John Fitch are all the heirs and personal representatives of the said John Fitch.” Upon this affidavit notice was published by the clerk as the statute provides, and it is contended by the complainants that the notice was erroneous because it stated the execution would issue on October 4, 1880, and that the execution was erroneous because it was not issued on that date, and that the notice was defective because the affidavit upon which it was issued stated that each of the appellants, “as this affiant is informed and believes, lives without the State of Illinois, and cannot be served with personal, written notice of the existence of the judgment, * * * and this affiant is informed and believes that” they reside at Nettleton, in the State of Kansas. An affidavit made by an agent of the plaintiff on which to base a writ of replevin, which stated he believed the plaintiff was the owner of the property about to be replevined, was held insufficient in Frink v. Flanagan, 1 Gilm. 35. An affidavit made by an agent of the plaintiff on which to base a writ of attachment, which stated the affiant was informed and believed the defendant was indebted to the plaintiff, etc., was held insufficient in Dyer v. Flint, 21 Ill. 80. This court had before it for consideration an affidavit on which to base publication of notice to non-residents under the Chancery act, in Rowand v. Carroll, 81 Ill. 224, and in commenting on the Frinlc case and Dyer case above, and distinguishing them from the case under consideration, said (p. 227): “These decisions were upon the ground that the respective statutes in those cases required a positive statement of the ownership and indebtedness to be made in the affidavit. There is a difference, in this respect, in the language of the statute here involved. Its language is, that the petitioner shall file ‘an affidavit showing that any defendant resides or hath gone out of this State.’ It does not require that the affidavit shall contain a positive statement of the fact of non-residence, etc., but that there shall be filed an affidavit showing such fact. An affidavit upon information and belief is a mode of showing such fact, and does show it, in that mode. We think the difference in the phraseology, in this respect, of the statutes may well admit a difference of construction, and we are inclined to sustain the affidavit in question as being sufficient. That a defendant resides or has gone out of the State is a fact which cannot be expected, in most cases, to be known by one about to commence a suit except on the information of others, and where the fact is not to be supposed to rest in personal knowledge, but to depend upon the information of another, there would seem to be no essential difference in swearing to the fact in terms of absolute assertion or upon information and belief. Perjury may be assigned on an affidavit that one is informed and believes as to a fact, as well as where he swears positively to the truth of the fact. In neither case would mere disproof of the fact, as that the defendant did not reside or had not gone out of the State, be sufficient to make a case of perjury unless the oath was willful and corrupt.” The same principle is sustained in Hannas v. Hannas, 110 Ill. 53. An affidavit on which to base notice of publication in chancery may be made on information and belief. The. notice to be given non-residents under the Chancery act is to be given by the clerk, based on a sufficient affidavit, and the notice is not required to be signed by a party in interest. Nor is it necessary to state in the affidavit or notice when the judgment will be issued. A somewhat similar question was before this court in Letcher v. Morrison, 27 Ill. 209, where it was said (p. 214): “We can find nothing in the language or the reason of this statute requiring more than one notice, no matter how many executions may be issued for the collection of the judgment. The statute does not even require the creditor to state in his notice that he intends to issue an execution upon the judgment, much less to state the time when he will issue it, but all that is required is to notify the administrator of the existence of the judgment. * * * But after that fact was made known to him in the mode required by the law, the judgment creditor has placed himself in the same position of right as if the judgment debtor were still living, and the administrator is bound to take notice of everything that is thereafter done which the debtor himself would be required to notice if living.” Although the affidavit'stated the execution would be issued on October 4, 1880, and was not issued until a subsequent day in December, yet as it was not necessary to state in the notice when it would be issued the fact that it was not issued on the day stated was immaterial. The court had allowed many amendments to the bill and passed on demurrers'thereto, had set aside an order dismissing the bill and allowed a supplemental bill filed, and then sustained demurrers to the bill as amended and to the supplemental bill. Complainants then sought to embody the original bill, with the various amendments, and the supplemental bill, in a new bill as a substitute. To refuse leave to do this was not error. It was an effort to put the pleadings in a shape to have the court again consider them on demurrer, which was very properly refused. By the sale under execution, and deeds thereunder, all the interest of the complainants passed from them, and it is unnecessary to consider the other questions, as the complainants are not erroneously affected. We find no error in the record, and the decree is affirmed. Decree affirmed.