Maxton v. Mount , 86 Ill. App. 187 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

It is contended by appellee that the decree of December 21, 1898, is erroneous because, first, the bill of complaint does not allege that the property described in the mortgage and sought to be reached by the bill to foreclose was at time of filing bill situated in Cook county, Illinois, and because neither the decree of June 9, 1898, nor that of December 21, 1898, finds that the property was so located; second, because after the entry of the decree of June 9,1898, and before December 21,1898, the appellant had paid $40 to apply on the amount found due by the decree of June 9,1898; third, because the decree of December 21, 1898, directed Ernest J. Magerstadt, then sheriff of Cook county, to take possession of the property and make sale of the same, while the decree of June 9, 1898, ordered its execution by James Pease, then sheriff of said county; and fourth, because it is claimed the effect of the entering of the decree of December 21, 1898, was to leave two independent liens, as found by the two decrees, to be enforced against the property for the satisfaction of the one debt.

There is nothing in any of these contentions which, in our opinion, merits very serious consideration. As to the first, it is enough, without discussing the necessity of the aliegation, to say that the bill of complaint does allege in substance and effect that the property was at the time of exhibiting the bill located in Cook county, Illinois.

As to the second, there are no facts presented which- in any way tend to show that the decree of June 9, 1898, was in any way satisfied or released, except as to the extent of the payment of forty dollars thereon, and to that extent it is not enforced by the decree of December 21, 1898. There is no ground whatever for the contention that a voluntary and unconditional payment by the judgment debtor of a part of the judgment debt willy>er se operate to vacate and make void the decree.

As to the third, the change in the office of sheriff is of no consequence. Hagerstadt, sheriff, could execute process directed to Pease, his predecessor in office. Greenup v. Stoker, 12 Ill. 24.

And as to the fourth point, the decree complained of, viz., that of December 21, 1898, in its terms provides that it and the decree of June 9,1898, shall constitute a lien for the amount only which was found due by the decree of December 21,1898. The decree is affirmed.