Vahle v. Braeckensick

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

This was an application by the appellee for a writ of assistance under a decree of foreclosure to put him in possession of certain premises in the decree involved, as the holder of a -master’s deed under the decree. The court below awarded the writ. The appellants urge that it ought not have been granted, because—

First. That the appellant Frederick A. Vahle was not served with process in the foreclosure proceeding.

Second. That prior to the application for the writ of assistance the appellee had instituted an action of forcible detainer, under the 6th clause of the 2d section of the Forcible Entry and Detainer Act, and had been defeated in such action, which appellants claim constituted a bar or estoppel of the application for the. writ of assistance.

The amended record, filed by leave of this court, shows that the appellant Frederick A. Vahle was duly and lawfully served with summons in the foreclosure proceedings, which disposes of the first of appellants’ grounds for reversal. The purchaser of lands under a decree of foreclosure may obtain possession by writ of assistance from the court which rendered the decree, or by an action of forcible detainer under the statute. These are concurrent remedies and both may be resorted to and prosecuted until possession is obtained through one or the other. Kessinger v. Whittaker, 82 Ill. 22.

While the same recovery is sought by both forms of procedure, the preliminary steps required of the plaintiff or moving party are not the same in each. A determination of either in favor of the party in possession would not necessarily bar a further prosecution of the other because such might result from a failure to comply with the decree or the statute in a mere preliminary requirement. At the time of the commencement of the action of forcible detainer the appellee had not produced to the appellant the master’s deed or certified copy of the decree or order of the court, as required by the decree, before a writ of assistance could issue.

So, when the action of forcible detainer was instituted, the appellee had no right to a writ of assistance, and such action could not bar a right that had no existence when the action was instituted. Cochran v. Folger, 116 Ill. 194.

The right to a writ of assistance inured after the institution of this forcible detainer suit and existed wholly independent of and unaffected by the unfavorable result of such suit, though only one recovery can be allowed.

It is suggested that it appears from the transcript that the decree was rendered by one having no judicial authority to do so, or that two judges of the court were presiding over the same court at the same time, which they could not lawfully do.

In the absence of competent proof to the contrary, we must presume that the decree certified to us by the clerk of the Circuit Court as the decree of that court was rendered by one having judicial authority so to do.

Either of the three judges of the circuit may lawfully preside in any county in the circuit for the whole or during only a part of the term or of any day of the term.

When the convening order shows that one of the judges presided at the opening of the court at the beginning of the term, or any day thereof, and the decree appears to be the judicial act of another of such judges, the presumption is not that both were presiding at the same time, but that each presided at such times during the day or term as he lawfully should in order to perform the judicial act shown by the record to have been performed by such judge.

The order of the court awarding the writ of assistance was correct, and is affirmed.