Schmitt v. Weber

Mr. Justice Farmer delivered the opinion of the court: The proof failed to establish the allegations of fraud and conspiracy to obtain title to the real estate and failed to establish that the justice of the peace was without jurisdiction to render the judgments complained of, and that complainant was ignorant of said suits, the judgments rendered therein and the executions issued upon said judgments. The' court found in its decree that both of said judgments were rendered after due personal service of summons upon appellee; that after the return of executions upon said judgments unsatisfied, transcripts -were issued by the justice of the peace and filed in the office of the clerk of the circuit court of Cook county; that executions were issued upon said transcripts to the sheriff of Cook county and were by him personally served upon appellee and demand made upon her for payment; that payment not being made, the executions were levied upon the premises described and they were sold by the sheriff to the appellant, O. E. Weber, for the sums alleged in the bill. The court found that the Montana street property was worth $3500 and was the homestead of the appellee; that the homestead was not set off to her prior to the levy and sale, but that appellant, Weber, offered at the trial to pay her the sum of $1000 for her homestead exemption; that the Ashland avenue property was worth $6000. The court further found and recited in -the decree that the allegations and charges-in the bill against defendants of fraud and conspiracy to procure title to the premises-had not been proven; that appellant, Weber, at the time of the sales paid the sheriff the aggregate of his two bids, $409.58, and said sum was applied upon and satisfied the judgments upon which the executions were issued. The court ordered that Weber have and recover of the complainant the sum of $409.58, with interest at five per cent from August 15, 1905, amounting to the sum of $462.48, and that execution issue therefor. The decree found that the transcripts issued by the justice of the peace were both defective and void, and by reason thereof all proceedings had. upon said transcripts were invalid and void and the sales made under the executions issued thereon did not divest appellee of her title, and upon that ground it was ordered and decreed that said sales and deeds be set aside, canceled, vacated and annulled, and that appellant, Weber, be perpetually enjoined from asserting or claiming any rights in said premises under said sheriff’s deeds. One-half the costs were ordered taxed to appellant, Weber, and the other- one-half to appellee. We are met at the threshold of this case with the objection that the relief granted by the decree was upon grounds not set out in the bill and was not warranted by the averments contained in said bill. There was a good deal of confusion in the docket entries, judgments and executions shown by the transcripts in spelling the names of defendants Wiedinger and Sundsten, especially the latter, but the court found in the decree that, however spelled, the name referred to the defendant Knut Sundsten. But there were more serious irregularities than these, which will be referred to hereafter. There is no allegation in the bill, however, referring to any irregularity in either of the transcripts. There is an averment that the transcript upon which execution was issued and the Ashland avenue property sold, recited a judgment in favor of Knut Semdsten and Barnard M. Wiedinger, doing business as Knut Semdsten & Co.that the execution issued on said transcript was in favor of Knut Semdsten and Bernard M. Wiedinger, and the sheriff’s deed recites a sale upon a judgment in favor of Knut Sundsen and Bernard M. Wiedinger. We do not think this a material irregularity, and it is the only reference made in the bill to any irregularity in the transcripts or the proceedings thereunder. It is apparent from reading the allegations of the bill that it was based upon the theory that the judgments before the justice of the peace were procured by fraud and that the justice had no jurisdiction of appellee. The chancellor so understood the bill and the proof offered, and counsel for the respective parties acted upon that theory at the hearing, which occurred July 3, 1907. This is apparent from a colloquy between court and counsel which took place at the conclusion of the testimony at that time. The chancellor took the case under advisement, after stating his impressions of the case made by appellee under the allegations of the bill. On the 10th of October, 1907, and before the decision was announced, the appellee, by leave of court, offered certain other evidence in an effort to show she was never indebted to Sundsten and Wiedinger, or either of them. At the conclusion of that testimony counsel for appellee then for the first time called the court’s attention to certain irregxilarities in the transcripts, which had been introduced in evidence at the hearing on July 3. After this was done the chancellor inquired of counsel for defendants what he had to say upon that subject, and counsel answered that it was the first time any such question hád been raised. The chancellor replied, “Yes, it was bran new to me.” Counsel for defendants was then given until October 15 to meet the objections raised, and afterwards the decree was rendered. The most serious irregularities pointed out were, that in one of the transcripts the suit was entitled “Knut Semdsten and Bernard M. Wiedinger, as Knut Semdsten & Co. vs. Helena B. Schmitt.” The docket entries copied in the transcript recite: “Case called at 10 A. M. Plaintiff appears. * * * Witness sworn and examined, and from the evidence the court finds the issues for plaintiff. Whereupon it is considered by the court that said plaintiff have and recover of the said defendant, H. B. Schmitt, the sum of $177.50 and costs of suit.” There is also a recital that on oath of “Pltff.” immediate execution Was ordered and issued to B. M. Wiedinger. The copy of the execution in the transcript does not contain the name or names of the person or persons in whose favor the judgment was rendered. It orders the constable, out of the goods and chattels of appellee, to make the sum of $177.50 and interest, and $6.60 costs, “which lately recovered before me,” etc. Who recovered the judgment is not anywherfe mentioned in the execution. The copy of the execution in the other transcript contains the same defect. It nowhere states the name of the person in whose favor the judgment was rendered. The alleged irregularity referred to in the bill was not called to the court’s attention. Defendants endeavored to supply the defects in the copies of the executions by the introduction of the original executions in evidence. These executions contained the names of the plaintiffs. We are of opinion that the authority of the clerk of the circuit court to issue executions upon the transcripts depended upon said transcripts reciting such facts as gave him such authority, and if they did not do so, the defects and irregularities could not be supplied after execution had been issued, real estate levied upon and sold, the time for redemption expired and a deed executed to the purchaser. Woofers v. Joseph, 137 Ill. 113; Hobson v. McCambridge, 130 id. 367. In our view of the case, however, it is unnecessary for us to determine whether the defects and irregularities in the transcripts were such as to invalidate the sales made under the executions issued thereon, as relief upon that ground was not justified under the allegations contained in the bill. Appellant disproved the case made by the bill, and if the evidence disclosed facts not relied upon in the bill, which would have entitled the appellee to relief, she should have amended her bill. “It is a fundamental rule of equity pleading that the allegations of a bill, the proof and the decree must correspond, and that the decree cannot give relief that facts disclosed by the evidence would warrant where there are no averments in the bill to which the evidence can apply, and that if the evidence disproves the case made by the bill the complainant cannot be given a decree upon other grounds disclosed by the proofs unless the court permits the complainant to amend his bill so as to present the case disclosed by the evidence.” (Dorn v. Geuder, 171 Ill. 362.) “A complainant must recover on the case made by his bill. He is not permitted to state one case in the bill and make out a different one in proof. The allegations and proof must correspond. The latter must support, and not be inconsistent with, the former. Although a good case may appear in the evidence, yet if it be variant from the one stated in the bill the bill will' be dismissed.” (McKay v. Bissett, 5 Gilm. 499.) “It is a well settled principle that the allegations and proofs must correspond, and that a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made by the evidence.” (Morgan v. Smith, 11 Ill. 194.) “He (the complainant) cannot allege one cause of relief against the purchaser and make out his case by proof of a different one.” (White v. Morrison, 11 Ill. 361.) To the same effect are Rowan v. Bowles, 21 Ill. 17, Vennum v. Vennum, 61 id. 331, and numerous other cases that might be cited. For the reason that the relief granted was not authorized under the allegations of the bill the decree of the superior court is reversed and the cause remanded. When the case is re-instated in the superior court appellee will have an opportunity to amend her bill if she so desires. If no amendment is made the superior court is directed to dismiss the bill. Reversed and remanded.