Grob v. Cushman , 45 Ill. 119 ( 1867 )

Mr. Justice Walker

delivered the opinion of the Court:

It is first insisted that the La Salle County Court did not have jurisdiction of the subject matter of this cause; that the act of the legislature under which jurisdiction was claimed, never became a law in the mode prescribed by the Constitution. And counsel in their argument refer to the journals of the house in support of the position. On the trial below no evidence from the journals was introduced. But it is now urged, that, as they are public records, this court will take judicial notice of them, and not require them to be embodied in the evidence. It is true, that they are public records, but it does not follow that they will be regarded as within the knowledge of the courts like public laws. Like other records and public documents, they should be brought before the courts as evidence. But when offered they prove their own authenticity. Until so produced they cannot be regarded by the courts. This is the rule anounced in the case of Illinois Central Railroad Company v. Wren, 43 Ill. 77.

It is insisted, that the court below erred in ruling that appellants answer instanter, and for failing to do so in entering a decree pro confessó. We have been referred to no law or "rule of practice, nor are we aware of any, which requires the court to enter such a rule. It is the duty of a defendant to a bill, to appear at the time he is required by the summons, and to interpose his defense, and, failing to do so, he is in default, and the bill may be taken pro confesso against him. If he desires further time than the ten days allowed by law, after the service to prepare his defense, he should apply to the court for further time, and if he makes no defense, the practice warrants a decree fro eonfesso on the return day of the summons if the service is sufficient.

It is again urged, that the court below erred in referring the case to the master after the issues were formed, to hear and report the evidence. In this nothing irregular is perceived. Under the reference, either party could introduce before him such evidence as he might choose, or they might take depositions of witnesses, or introduce oral evidence on the hearing unless it be in cases of a reference to state an account, when all of the evidence should be brought before the master; but, on the hearing before him, it may be by deposition, documentary or oral evidence, or either, or all of these modes may be resorted to in stating the account. In this, then, there was no error.

On the coming in of the master’s report, appellants came into court, and, on affidavits of merits, obtained leave and filed answers, to which replications were interposed, and the case was again referred to the master to take proof, and to report to the court. At the next term of the court, the master reported that he had issued a subpcena for each of the defendants and D. L. Hough, to appear before him, and give evidence in the case, but that they failed to appear, or to obey the subpcena. He reported no additional evidence. Thereupon, the court, on a final hearing, rendered a decree, so far as the record shows, on no other evidence than the admissions of the answer and the first report of the master. This action of the court is assigned for error.

It is urged, that, when the defendants below obtained leave to answer, it operated to vacate, not only the fro eonfesso decree, but also the reference to the master and his report of the evidence previously taken by him. This latter proposition we think is not true. Had depositions been properly taken and read on the hearing, a decree based upon them been rendered, and subsequently set aside and vacated, it would not in the slightest degree have affected the depositions. They could, if otherwise legal, have been read on any subsequent trial. So in this case, when the bill was taken as confessed, the court below might have rendered a decree and granted the relief upon the pro confesso order without other or further proof. But, being anxious to preserve any and all rights which either of the defendants might have, the court, as he had the unquestioned right to do, referred the case to the master to hear and report the evidence in support of the truth of the allegations of the bill, before rendering a decree. It then follows, that the evidence thus taken, reduced to writing and reported to the court by the master, was as legal and as much testimony as if the depositions had been taken, under the statute, before any authorized officer.

The question then is presented, whether the admissions in the answer, and the evidence reported by the master, sustain the allegations in the bill. While the answer is not under oath, still, the bill must be proved, or the decree can not be sustained, and the proof must appear in the record in some manner, or the decree must find the facts to have been proved. The answer does not admit the recovery of the judgment by Bobinson against Minehard, the issuing of execution or the sale of the mortgaged premises thereunder to Bugg by the sheriff, and the assignment of the certificate of purchase by Bugg to defendant in error. These allegations lie at the foundation of complainant’s claim to equitable relief. If he was not a judgment creditor, having a lien on the land, or occupied the relation of such a creditor, he had no right to redeem from the sale, under the decree of foreclosure of Wylie’s prior mortgage. He claimed in his bill, that, he having a judgment lien, or, rather, having purchased under a judgment which was a junior lien to the mortgage on the lands in controversy, acquired before the foreclosure was had, to which he was not a party, he had the equitable right to redeem, by paying the amount of the decree of foreclosure with interest and costs, inasmuch as the sale for more than the value of the land was certainly in fraud of his right of redemption. And, the land having been thus sold for $1,000 more than that sum, he could not redeem by paying the master the amount of the decree with interest and costs, but was authorized to pay it to the holder of the certificate of purchase under the decree. It was therefore essential, to obtain the relief, that he should have proved these allegations. But we find nothing in the record to establish their truth, or sustaining the charge of fraud.

Defendant in error holding, by assignment this junior lien of a judgment creditor, which had attached to the mortgaged premises before the foreclosure suit was commenced, the decree and sale did not deprive him from redeeming from the sale under the decree. And, if the arrangement by which Grob paid $1,000 more than the amount of the decree and costs was fraudulent, that could not deprive defendant in error of the right to redeem by paying the same sum of money he would have been required to do had it been sold for the amount of the decree and costs. If the fraud should be established, then defendant in error would show himself entitled to redeem on those terms. But in this case there is no evidence of the fraud charged in the bill. Defendant in error, having placed his right to redeem for that sum upon the ground of fraud in Grob and the mortgagor and mortgagee, to produce a sale nominally for more than the decree and the worth of the land, to prevent him from redeeming, he should be held to the proof of the allegation. The fraud is denied by the answer, and there is no evidence to establish it in this record.

The allegations of the bill not admitted by the answer must be proved. The failure of plaintiffs in error to obey the subpoena issued by the master, did not in any degree change the necessity for proof in the case. The cause1 was at issue, and it devolved upon complainant to establish his case by proofs. Their failing to appear and testify before the master did not amount to a confession that the allegations of the bill were true, or lessen the quantum of the evidence necessary to establish their truth.

We do not see any force in the objection urged, that a bill will only lie in the court in which the decree was rendered foreclosing the mortgage. Defendant in error was not made a party to that suit, and, claiming rights in no wise growing'out of that proceeding, we are unable to perceive why any court of equity having jurisdiction may not entertain the bill. . The parties are not the same, the right sought to'be enforced is different, and hence no necessity is perceived for confining the jurisdiction alone to the Circuit Court. Had the parties holding the lien under the judgment been made parties to the bill to foreclose, as they should have been, then a different question might have been presented.

For the errors above indicated, the decree of the court below must be reversed and the cause remanded for further proceedings.

jDecree reversed.