Armstrong v. Douglas Park Building Ass'n , 60 Ill. App. 318 ( 1895 )

Me. Justice Waterman

delivered the opinion of the Court.

The proceeding in the court below was upon a bill filed by a building association to foreclose a mortgage given to it.

The bill was taken as confessed for want of appearance by the defendant. The cause was referred to a master to take testimony and report. This the master did, and his report being confirmed, a decree was rendered thereon and the mortgaged property being sold in pursuance of the decree, the defendant in error became the purchaser for a sum that left a deficiency of $205.

Several terms after the entry of the decree, plaintiff in error appeared and asked to have the decree set aside, filing affidavits in support of her motion, in which she set up that the master had erred in making his computation and finding of the amount due, and that his finding was not supported by the evidence.

This motion the court overruled.

Plaintiff in error can not complain of any lack of evidence in this record in support of the decree. A party against whom a bill has been taken as confessed for want of an appearance, can not assign as a cause of error that the proof does not sustain the allegations of the bill. It is a matter of discretion with the court, under our practice, whether it will require evidence to be produced.

A distinction exists betwen decrees pro oonfesso under the statute for want of an appearance and decrees pro oonfesso for ivant of an ansiver after appearance. In the former, there being no one Avliom the plaintiff can serve, all the necessary proceedings may be ew parte. Daniells’ Ch. Pleadings and Practice, 5th American edition, 1175; Van Valkenburgh v. Trustees, 66 Ill. 104.

Plaintiff in error was not entitled to notice of the reference to, or hearing by the master, and can not doav set up that his finding was erroneous, provided it was within the allegations of the bill; that it was, is manifest.

There not having been realized at the sale the amount of the decree, a receiver was appointed to collect rents with which to satisfy the deficiency decree.

Thereupon the defendant below came in and expressed her desire to pay such decree and have the receiver discharged; upon this the court heard evidence and therefrom found that the amount due from her to said building association was $207.54, and the amount due to the receiver was $74.48, and found that she had paid said sums to the building association and the receiver. It would seem that these sums were found by her consent thereto, as she had paid them before the order was made.

The receiver -was, therefore, ordered to deliver the premises to the plaintiff in error, and it was ordered that upon such delivery he should be discharged.

Plaintiff in error assigns error upon this finding and order.

The order is not only, apparently one entered at her instance, but can have been prejudicial to her only in the amount found to be due.

She was not directed tó do anything; the receiver was alone commanded to act. As to the finding of the amount dug, the evidence upon which the finding was made, not having been preserved, it is impossible for us to say that it was erroneous.

Plaintiff in error being in default for want of an appearance, was not entitled to notice of the application for the appointment of a receiver; she did not appear until after he had taken possession of the premises in question, and she seems then to have failed to object to his appointment, but rather to have acquiesced therein by moving for and obtaining a finding as to the amount for the non-payment of which he was holding, and by paying such amount and obtaining an order that he surrender the property to her.

If he failed, or any tenant under him failed, to surrender possession promptly, the order was not thereby made erroneous.

The decree and order of the Circuit Court is affirmed.