Rardin v. Rardin

Mr. Justice Cartwright delivered the opinion of the court: The county court of Clark county made an order admitting to probate an instrument as the will of Mahaly Rardin, deceased, on the petition of her surviving husband,- the appellee, Josiah C. Rardin. That order was afterward set aside by the court because notice had not been given as required by the statute and the court had no jurisdiction to make any order. Notice having been given as provided by law, the appellant, Jackson Riley Rardin, appeared and resisted probate of the instrument, and the court, upon hearing the testimony of the subscribing witnesses, refused probate. An appeal was taken to the circuit court and a transcript of the proceedings was filed in that court. At the March term, 1915, of the circuit court, on motion of the appellee, an order was entered granting leave to supply, by the first day of the next term, the files alleged to have been lost! At the July term, 1915, the appellee and appellant appeared, and the appellee moved the court to enter an order showing that the files had been restored by the filing of copies marked with a file-mark of July 8, 1915- The appellant objected because no notice had been given to him of the application to restore the files and no hearing had been had on such application. The objection was overruled and the appellant excepted, and the court entered an order reciting that the files had been supplied by the papers marked filed on July 8, 1915. The court thereupon proceeded to hear the cause, and the appellee called the attorney for the appellant as a witness, and he testified that he was attorney for the appellant in the proceedings in the probate court and resisted the application to admit the instrument tO' probate; that he saw and read the original will and had his stenographer malee a copy of it; that the paper then produced was a true copy of the original will; that on the Saturday evening before the circuit court convened for the March term, 1915, he had the original will, with other papers, in his office and left the same in his office desk when he left the office Saturday evening; that he returned to his office on the following Monday morning and found that’the desk had been broken open, the telephone wires cut, the drawers of the filing cabinet removed and contents scattered upon the floor; that an attempt had been made to^ open his safe, and that the original will was gone and he had searched for it but had been unable to find it. There were two other copies of the original will, one being a copy of the copy attached to the petition filed in the county court as contained in the transcript filed in the circuit court, and the other a copy of the probate record where the will was recorded in the county court, and both were certified to by the clerk of the county court. The court admitted in evidence, over the objection of the appellant, all the copies. The appellant objected to any hearing concerning the lost will or these copies on the ground that the proceeding was to establish a lost or destroyed will, of 'which the circuit court did not have jurisdiction. The objection was overruled. The attestation clause contained all the particulars of a good attestation and one witness to the will testified to all the requirements of the law. The other witness testified that he saw the original and his signature to it was in his own handwriting, and that, although he did not remember the circumstances,, he knew that he asked the testatrix if it was her will, because when witnessing a will he always went through the regular formalities and asked the necessary questions. The court admitted the instrument to probate, and this appeal from the judgment was prosecuted’. It is contended by the appellant that the order made at the March term, 1915, of the circuit court was without atrthority of law and void because he had no notice of the motion and no opportunity to be heard. After a judgment a court has no jurisdiction over files of the cause alleged to have been lost except upon notice to interested parties and upon satisfactory evidence that the original files have been lost and that the files supplied are substantial copies of the originals. In such a case an order substituting a copy without notice to parties adversely interested is a nullity and binding on no one. (Harris v. Lester, 80 Ill. 307; Blake v. Miller, 118 id. 500.) In the progress of a case, and before judgment, if a paper is lost a copy can be substituted only on proof of the loss and that the substituted paper is a substantial copy. A want of such proof would constitute error which might be prejudicial, but where an appeal is perfected in the lower court the parties must follow the appeal without further notice and are in the court to which the appeal is taken without service of process. Where an appeal is so taken a party is bound to take notice of the appeal and follow the case and is in the court for all purposes. In the absence of some rule of court requiring notice of a motion, notice is not required, and it does not appear that there was any rule of the circuit court of Clark county requiring any notice. No bill of exceptions was taken to show that there was no evidence of -the loss of the original will, so that the action of the court on the motion cannot be reviewed. At the July term, 1915, when the motion was made for an order showing that the files had been restored by filing copies, the attorney for the appellant was examined, and it was proved that the original will was lost while in his possession and without his fault and that one of the copies was made by his stenographer and was a true copy. The other two copies were certified by the clerk of the county court, and there was no error in the order reciting that the files had been restored. The appellant objected to a hearing on the ground that the proceeding was to establish a lost or destroyed will while the jurisdiction for that purpose is in the county court. (Beatty v. Clegg, 214 Ill. 34; Mather v. Minard, 260 id. 175.) But this was not a proceeding of that kind. The will was in existence when the county court acquired jurisdiction to determine whether it should be admitted to probate, and after the appeal it was filed in the circuit court, which acquired jurisdiction by the. filing of the transcript to determine whether that instrument was the last will and testament of Mahaly Rardin. The circuit court having acquired jurisdiction to admit the instrument to probate, the jurisdiction was not thereafter lost by the act of a burglar breaking ino the attorney’s office and taking the will. The restoration of the paper, the existence of which had been established in the county court, was all that was necessary to enable the circuit court to proceed. The evidence above recited. fulfilled all the conditions of the law and was sufficient to' admit the will to probate. Thompson v. Owen, 174 Ill. 229; Gould v. Theological Seminary, 189 id. 282; Mead v. Presbyterian Church, 229 id. 526; Thompson v. Karme, 268 id. 168. The appellant objects to the judgment because the appeal bond ran to the estate of Mahaly Rardin, deceased, when it should have run to the opposite party. It should have been made to the adverse party, (Schofield v. Thomas, 231 Ill. 114,) but the record does not show any objection to the bond or motion to dismiss for an insufficient bond, and it is too late to make the objection now. It is also urged against the judgment that there was no proof of the death of Mahaly Rardin. There was sufhcient evidence of her death in the testimony of various witnesses that they had been acquainted'with “Mahaly 'Rardin, deceased.” She was spoken of by the witnesses as “Mahaly Rardin, deceased.” The judgment is affirmed. Judgment affirmed.