Steele v. Wynn , 139 Ill. App. 428 ( 1908 )

Mr. Justice Dibell,

delivered the opinion of the court.

When the conservator of an insane defendant fails to file an answer for him, it is the duty of the court to appoint a conservator or guardian ad litem to answer and to protect his interests. Hall v. Davis, 44 Ill., 494. It is error to enter the default of an insane defendant for want of an answer. White v. Kilmartin, 205 Ill., 525. But the second plea filed here alleges that George P. Wynn was adjudged insane, that a conservator was duly appointed for him, and that said conservator took such due and orderly proceedings in the court having jurisdiction of the person and estate of said George P. Wynn, insane, that all his interest in the real estate covered by the mortgage foreclosed in this suit was duly sold and conveyed to James G. Smith, the conveyance having been made on November 18, 1899, long prior to the filing of this bill to foreclose. The demurrer to this plea is based on the ground that it sets up matters occurring long prior to the filing of the bill, and that it contradicts or is inconsistent with the allegations of the bill and with the position of the defendant in error in the court below, and that therefore it cannot be allowed. It will be seen from the statement preceding this opinion that while the bill avers that William Wynn owned this real estate when he mortgaged it, and that by his will, which became effective on February 4, 1894, he devised a one-seventh interest therein to said George P. Wynn, it does not aver that George P. Wynn remained the owner of that interest when the bill was filed. It does name defendants who have or claim some interest in the premises, and includes James G. Smith among the number, and does not apply that allegation to George P. Wynn. It does not aver that the latter had any title or interest in the premises when the bill was filed. The averments of the plea furnish an explanation for making George P. Wynn a defendant, and also for the failure of the conservator to answer for him, namely, that the title and interest of G'eorge P. Wynn had been conveyed to James G. Smith long before the bill was filed but the deed had not then been filed for record, and was not so filed till after the decree of foreclosure was entered. We conclude that the plea does not contradict but only supplements the bill, and that the demurrer thereto should be overruled. The plea stands admitted. It therefore appears that George P. Wynn has no interest in the premises and had none when the bill was filed. The error of entering his default was therefore harmless.

Jurisdiction of defendant Sarah E. Wynn, one of the devisees of William Wynn, was obtained by the publication and mailing of notice. The publisher, a corporation, in a certificate signed in the corporate name by its president, certified that it is the publisher of the Waukegan Gazette, “a newspaper printed and published at Waukegan in the county of Lake and State of Illinois, and that the annexed notice was published once in each week for four weeks successively in said paper, the first publication of which said notice was dated the 25th day of January, A. D. 1902, and the last publication thereof was dated the 15th day of February, A. D. 1902.” It is objected that it does not appear that said newspaper was a secular newspaper of general circulation. The decree found that said Waukegan Gazette was a public newspaper printed and published at the city of Waukegan, in the county of Lake, in the State of Illinois. It is further objected that the certificate of publication does not show that the first publication of notice was made at least thirty days before the term, nor does it give the dates of the first and last papers containing said notice. The term to which the notice was returnable was to be held on the first Monday of March, 1902. While the use of the word “dated” is not so explicit as the word “made” would have been, yet we think the certificate should be construed to mean that the paper in which the first publication was made was dated January 25, 1902, and that the paper in which the last publication was made was dated February 15, 1902, and that the date of each paper was the true date of its issue or publication. But jurisdiction of Sarah E. Wynn does not depend upon such an assumption. The court could hear further proofs of due publication of notice to her, besides said certificate of publication. The clerk’s certificate of the mailing of notice to said defendant recites that a copy of the said notice was mailed to her on January 25, 1902, within ten days after its first publication. As January 25 was more than thirty days before the first Monday of March, it thus appeared that the first publication was made within the time required by law. The bill was filed on January 22, and the first publication therefore could not have been made earlier than J anuary 22 nor later than January 25. The court had authority to hear still further proof to establish due publication and mailing, and it found that due notice of the pendency of the suit had been given said defendant Sarah E. Wynn by publication and by the mailing of notice.

The summons was returned as to the defendant Hosea E. Wynn served upon Hosia E. Wynn. We regard these as idem sonans. The court found that defendant Hosea E. Wynn had been personally served with process more than ten days before that term of court. The bill averred and _ the decree found that before the bill "was filed Hosea E. Wynn and his wife conveyed his interest in the mortgaged real estate to Robert D. Wynn. Hosea E. Wynn was therefore not a necessary party to the foreclosure suit. The fourth pica shows that Robert D. Wynn has released all errors herein. We are of opinion that the decree should not be reversed because of the error in spelling the name of Hosea E. Wynn in the return of the summons.

It is argued that the court violated certain of its rules in its proceedings in this cause. The record of this cause, certified by the clerk of the court below, to be complete, except as to a missing entry of appearance by certain defendants, does not contain any rules of court. The clerk has appended to the record of this cause copies of certain rules and has certified that they are true copies and that they were in force at the March term, 1902. • We are of opinion that the rules cannot in that way be established and incorporated into the record of a cause wherein no action pertaining to such rules was ever taken. Ho defendant asked for delay because of said rules. It is not shown that any defendant was injured because of said action. One of these rules required that evidence in default cases should be written up and certified by the official stenographer and filed with the clerk, and it is urged that the proof beard by the court after the receipt of the master’s report should have been thus written up and filed. Such a transcript of oral proof could not be made a part of the record by the certificate of the official stenographer. It could only be made a part of the record by the certificate of the judge of the court. If such a transcript had been filed it would not have aided plaintiffs in error in a review of the case here. Moreover, there is nothing in this record to show that the court below had an official stenographer at the time when these proceedings were had.

The master’s report set out in full the oral evidence heard by him, and the note and mortgage and tax redemption certificates-essential to make complainant’s case, and contained a memorandum only of certain other documentary evidence offered, and it is argued that it was error not to set out all said documents in full in said report. As tire decree recites that the cause was heard not only upon the report of the master, hut also upon oral and documentary proofs produced and heard in open court, we must assume that this defect, if the omission of said documents from the master’s report was a defect, was cured by their production in open court.

The decree contains one mistake. The bill averred that Leorah C. Wynn was the wife of William Wynn, and that she executed said mortgage; and that her husband willed her a sum of money in lieu of all her dower and homestead and other rights in his property. The proof showed that Leorah C. Wynn executed said mortgage as wife of William Wynn. The decree however named Sarah G. Wynn as the wife of William Wynn and the one who executed said mortgage. This is evidently a clerical mistake. Neither Leorah C. nor Sarah G. Wynn was made a party to this suit. As the decree finds that the wife of William Wynn accepted a bequest of money from him in lieu of all her interest in these lands, we are of opinion that this mistake in name does not call for a reversal of the decree.

The certificate of publication of the notice of the master’s sale is substantially in the same form, except as to the number of weeks of publication, as the certificate of publication by the same publishers in the same newspaper already discussed. The considerations already suggested are in part applicable. The court found that the master had proceeded in due form of law and in accordance with the terms of the decree. We conclude that the objection to the certificate of publication of the notice of sale is unfounded. Objection is made to the amount of costs paid by the master. Apparently the amount is correct, but if not plaintiffs in error should ask the court below for a re-taxation of costs. The fee book is not in this record, and the record does not disclose rvhat items were taxed as costs. The decree directed the clerk to tax the costs and the master to pay them, and the receipt of the clerk shows that the master paid what he taxed.

As we find no reversible error in the record, but little further need be said about the pleas. We hold that a next friend could sue out a writ of error for an insane person, if his conservator failed to act, and that if that course were irregular it would not bar a writ of error, and we sustain the demurrer to that plea. We overrule the demurrer to the second plea, for the reasons already stated. Issue of fact should not have been joined upon the.third plea. The death of Sarah E. Wynn would not bar a writ of error in behalf of the interest she had owned. The fact of her death should have been presented by motion or by plea in abatement, and the other plaintiffs in error could then have amended by substituting the parties who succeeded to her interest. The joinder of an issue of fact upon said improper plea in bar raised an immaterial issue, which we disregard. It is argued that the fourth plea does not aver a consideration for the release of errors. It avers that the plaintiffs in error named in said plea released all errors “by their deed” duly signed, acknowledged and delivered. The term “deed” means a sealed instrument, and a seal imports a consideration. Anderson’s Law Dict., title, “Deed”; Rendleman v. Rendleman, 156 Ill., 568. We overrule the demurrer to the fourth plea.

It is argued that there are many other slight inaccuracies in the record, but we find in them no reversible error.

The decree is affirmed..

Affirmed.