Pisa v. Estate of Rezek , 1903 Ill. App. LEXIS 115 ( 1903 )

Mr. Justice Adams

delivered the opinion of the court.

Counsel for appellant argue that because neither appellant nor his attorneys had notice that the contested motion to dismiss the appeal would be called up for disposal on the contested motion calendar February 19, 1902, the court was without jurisdiction to dispose of the motion. In support of this proposition counsel cite authorities to the effect that the rules of court, not in conflict with any statute, are the law of the court, and have, “ with reference to practice in the court, ail the binding effect of a statute.” This may be conceded to be the law, but the question remains whether non-compliance with these rules of practice affects the jurisdiction of the court, or is merely an error remediable in a court of review, when the question is properly presented to such court. In the present case the appeal was taken from the Probate to the Circuit Court, as provided by the Probate Court Act, and stood for trial de novo in the latter court. Hurd’s Rev. Stat. 1901, p. 571, Sec. 11.

The appearance of the heirs was entered in the Circuit Court, and the administrator of the estate of Marie Rezek, deceased, was bound to follow the appeal, and was in court, in legal contemplation-. The transcript of the proceedings in the Probate Court was filed in the Circuit Court October 24, 1901, more than four terms before April 19, 1902, when the appeal was dismissed. The court then, at the last date, had complete jurisdiction of the persons and the subject-matter. Assuming, for the sake of the argument, but not deciding, that motions placed on the contested motion calendar, as provided by rule 15 of the writ, or by agreement, as in the present case, could not regularly be called up for disposition, except on notice to the opposite party or his attorneys, in accordance with rules 12 and 14, and on notice in the Law Bulletin, as provided by rule 15; yet, if the motion is called up and disposed of without such notice having been given, this is a mere irregularity, or error, and does not affect the jurisdiction. The rules are merely regulative of the practice. While in some of the cases cited by counsel it has been held error for the court to disregard its rules of practice, no case has been cited, nor has it been held in any case known' to us, that such disregard affects the question of jurisdiction.

Appellant’s counsel say in their argument:

“ As to all matters requiring actual notice the parties are not in court without such notice. The constructive presence of the parties in court, which is jurisdiction, can not be obtained without notice is served as required by the rules.”

We regard this proposition as untenable. A rule so construed would be manifestly against the statutes of the state, which give to service of process on a defendant the effect of investing the court issuing the process with jurisdiction of the person of the defendant. A court can not, by its ’rules, divest itself of, limit or restrict the jurisdiction conferred on it by law. The court having had jurisdiction of the persons and the subject-matter when the order was made dismissing the appeal, and a number of terms of the court having intervened between the term when the order was entered and June 7, 1902, when the motion to vacate the order was made, the court was powerless to allow the motion. The judgment dismissing the appeal is final and binding on the parties, and the law is thoroughly settled in this state by a long line of decisions, that a court can not set aside or vacate such a judgment at a term subsequent to that at which it was rendered. Cook v. Wood, 24 Ill. 295; In re Burdick, 162 Ib. 48, 53.

We do not think it necessary to consider the counter affidavits further than to say that appellant’s motion to strike them from the files was properly overruled. Hartford Ins. Co. v. Rossiter, 196 Ill. 277, 280.

If, however, the court was without jurisdiction to set aside the order of April 19, 1902, as we hold, all questions with respect to the affidavits are immaterial.

The judgment will be affirmed.