{
  "id": 3094940,
  "name": "Oscar M. Meusel, Appellant, v. Ernest W. Bock et al., Appellees",
  "name_abbreviation": "Meusel v. Bock",
  "decision_date": "1924-10-20",
  "docket_number": "Gen. No. 29,377",
  "first_page": "455",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T15:35:37.619675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Oscar M. Meusel, Appellant, v. Ernest W. Bock et al., Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice McSurely\ndelivered the opinion of the court.\nThis is an appeal from a decree dismissing for want of equity complainant\u2019s bill filed November 4, 1920, in which he asked that certain real estate, title in Ernest W. Bock, be sold to satisfy a judgment in favor of complainant which he claimed was a lien on the premises.\nIt is the established rule that the equitable relief sought by complainant\u2019s bill will not be granted in the absence of a valid judgment lien had by complainant on the real estate. Newman v. Willetts, 52 Ill. 98; Weis v. Tiernan, 91 Ill. 27.\nDid complainant have such a lien? The evidence before the court showed that on November 26, 1913, a judgment for $294.50 was rendered in the municipal court of Chicago in favor of Oscar M. Meusel, the complainant here, against John D. O\u2019Neill and Mary O\u2019Neill, his wife. Paragraph 1, ch. 77, Cahill\u2019s Ill. St., provides that when execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien although execution may be issued at any time within seven years, and shall become a lien from the time it is delivered to the sheriff or other proper officer. No execution was issued within one year after this judgment, so that on November 25, 1914, the lien of the judgment ceased until such time as a valid execution might issue within the statutory period of seven years.\nDecember 3, 1914, John D. O\u2019Neill, the judgment debtor, died leaving a widow and children. Section 39, ch. 77, jf 40, Cahill\u2019s Ill. St., provides that when a person shall die after the rendition of a judgment for the payment of money against him, no execution shall issue or sale be made until after the expiration of twelve months from the death of such deceased person. An execution on this judgment was issued March 22, 1915, which was a little over three months after O\u2019Neill\u2019s death. This execution was in clear violation of the provisions of the statute and void. This would seem so obvious as to require no argument. Under similar circumstances such an execution has been held to be void, with citation of numerous supporting cases, in Augustus Coran & Co. v. Pittenger, 92 Ill. 241; and Kinkade v. Gibson, 209 Ill. 246.\nJuly 15, 1918, the defendant Bock purchased the property from John Cunningham, in whose name it was then registered under the Torrens System. At this time there was registered on the property a contract of purchase dated May 16, 1905, between John O\u2019Neill and Cunningham, and a transcript of the Meusel judgment. It is not clearly shown that O\u2019Neill had any other interest in the premises than the right to purchase under this contract, but even if he had an interest which might be subjected to the lien of a judgment, the Torrens certificate showed that no valid lien existed at the time defendant Bock purchased from Cunningham.\nComplainant has not made certain parties defendant who were necessary parties, namely, one of the minor heirs of John O\u2019Neill, to whom descended an undivided portion of his father\u2019s estate; also Thomas J. Healy, the trustee in a trust deed executed by Bock conveying the property as security for a loan; also the owners and holders of the notes secured by said trust deed. In the absence of these necessary parties, the court had no jurisdiction to enter a decree in compliance with the prayer of the bill. Johnson v. Huber, 134 Ill. 511, 515.\nComplainant in his brief suggests that even if John O\u2019Neill\u2019s interest was not subject to the lien of the judgment it was a lien against the interest of his wife Mary. The record fails to disclose that Mary O\u2019Neill had any interest in the contract with Cunningham. Furthermore, complainant\u2019s bill does not seek any relief predicated upon the existence of any interest in the premises in her. The complainant must recover on the case made by his bill, and in the absence of averments in the bill touching the interest of Mary O\u2019Neill there can be no decree with reference thereto even if the evidence disclosed that she had an interest. Reed v. Reed, 135 Ill. 482; Stearns v. Glos, 235 Ill. 290.\nFor the reasons above, indicated we hold that the decree of the circuit court is proper and it is affirmed.\nAffirmed.\nHatchett and Johnston, JJ., concur.",
        "type": "majority",
        "author": "Mr. Presiding Justice McSurely"
      }
    ],
    "attorneys": [
      "Benjamin F. J. Odell, for appellant.",
      "Litsinger, Healy & Reid, for appellees."
    ],
    "corrections": "",
    "head_matter": "Oscar M. Meusel, Appellant, v. Ernest W. Bock et al., Appellees.\nGen. No. 29,377.\n1. Cbbditobs\u2019 suits \u2014 valid judgment lien as prerequisite to sale in equity to satisfy judgment. The equitable relief of a sale of real estate to satisfy a judgment in favor of complainant will not be granted in the absence of a valid judgment lien had by complainant on the real estate.\n2. Judgments \u2014 cessation of lien on real estate for failure to issue execution within year. Under the provisions of section 1, ch. 77, Cahill\u2019s Ill. St., where no execution was issued on a judgment within one year from the date of the judgment, the lien on real estate ceased until such time as a valid execution might issue.\n3. Executions \u2014 validity of execution issued within year of judgment debtor\u2019s death. An execution on a judgment issued in less than one year from the death of the judgment debtor was void under section 39, ch. 77, If 40, Cahill\u2019s Ill. St.\n4. Cbbditobs\u2019 suits \u2014 necessary parties to suit in equity to sell real estate to satisfy judgment. In a suit asking that certain real estate be sold to satisfy a judgment in favor of complainant, a minor heir of the judgment debtor to whom descended an undivided portion of the estate, the trustee in a trust deed executed by the title owner of the property and also the holders of notes secured by the trust deed were necessary parties and in their absence the court had no jurisdiction to enter a decree in compliance with the prayer of the bill.\n5. Judgments \u2014 necessity that decree follow case made by bill. Where a bill for the sale of real estate claimed to be subject to the lien of a judgment does not seek any relief based upon the existence of any interest in the wife of the judgment debtor, a decree could not be based upon such an interest even if the evidence disclosed that one existed.\nAppeal by plaintiff from the Circuit Court of Cook county; the Hon. Fbancis S. Wilson, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1924.\nAffirmed.\nOpinion filed October 20, 1924.\nBenjamin F. J. Odell, for appellant.\nLitsinger, Healy & Reid, for appellees."
  },
  "file_name": "0455-01",
  "first_page_order": 485,
  "last_page_order": 488
}