{ "id": 869054, "name": "Wilhelmina Fisher v. Katharina Stiefel and Otto C. Butz", "name_abbreviation": "Fisher v. Stiefel", "decision_date": "1896-02-11", "docket_number": "", "first_page": "580", "last_page": "583", "citations": [ { "type": "official", "cite": "62 Ill. App. 580" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "125 Ill. 298", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2935753 ], "opinion_index": 0, "case_paths": [ "/ill/125/0298-01" ] }, { "cite": "107 Ill. 396", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5366394 ], "opinion_index": 0, "case_paths": [ "/ill/107/0396-01" ] }, { "cite": "37 Ill. App. 621", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 859885 ], "opinion_index": 0, "case_paths": [ "/ill-app/37/0621-01" ] }, { "cite": "54 Ill. 281", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5275420 ], "opinion_index": 0, "case_paths": [ "/ill/54/0281-01" ] }, { "cite": "128 Ill. 148", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5411966 ], "opinion_index": 0, "case_paths": [ "/ill/128/0148-01" ] }, { "cite": "109 Ill. 325", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2854142 ], "opinion_index": 0, "case_paths": [ "/ill/109/0325-01" ] }, { "cite": "83 Ill. 226", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2661297 ], "opinion_index": 0, "case_paths": [ "/ill/83/0226-01" ] }, { "cite": "81 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2671105 ], "opinion_index": 0, "case_paths": [ "/ill/81/0072-01" ] }, { "cite": "109 Ill. 188", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2853206 ], "opinion_index": 0, "case_paths": [ "/ill/109/0188-01" ] } ], "analysis": { "cardinality": 351, "char_count": 5623, "ocr_confidence": 0.522, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5196329979083723 }, "sha256": "7bd65339c8fcfe14dc051c48f88e57e53f133af60cc70318563e9715b8936c2b", "simhash": "1:122894d5a5b58620", "word_count": 972 }, "last_updated": "2023-07-14T19:10:11.174453+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wilhelmina Fisher v. Katharina Stiefel and Otto C. Butz." ], "opinions": [ { "text": "Mr. Justice Waterman\ndelivered the opinion of the Court.\nIt is insisted by appellant that Arnold W. Eschenburg, named in the trust deed as trustee, should have been made a party defendant to the foreclosure suit. The bill of complaint contains this allegation: \u201c That the said trust deed contained the following provision: \u2018And in case of the death, absence or removal from said Cook County, refusal or inability to act of the said party of the second part, then Otto C. Butz, of the said city of Chicago, shall be and he is hereby appointed and made successor in trust to the said party of the second part under this deed, for the uses and purposes hereinafter expressed, with the same power and authority as the said trustee.\u2019 \u201d\nThe bill also alleges that Arnold W. Eschenburg has removed from and resides outside of the State of Illinois.\nThe decree is upon the bill of complaint taken as confessed against (certain defendants) and the answers of Wilhelmina Eischer (and others), and upon complainants\u2019 replications to said answers; the master\u2019s report, and upon proofs heard in open court; and the decree sets forth that the court finds that the material allegations of the bill are true.\nThere was, therefore, no necessity for making Eschenburg a party. Butz, who has succeeded him, was made a party.\nThe recitals in the decree are a sufficient preservation of the facts upon which the decree is based. In the absence of a certificate of evidence, it will be presumed that the findings were warranted by proofs heard by the court. In the absence of a certificate preserving all the evidence heard by the court, it must be presumed that there was sufficient evidence to warrant and sustain the findings. Secrist et al. v. Petty, 109 Ill. 188-199; Morgan et al. v. Corlies, 81 Ill. 72; Walker v. Abt, 83 Ill. 226; Groenen v. Coffeen, 109 Ill. 325-326; Brown et al. v. Miner et al., 128 Ill. 148; Mauck v. Mauck, 54 Ill. 281; Frink v. Neal, 37 Ill. App. 621.\nWilhelmina Fischer in her petition to set aside the decree, avers that she did not sign or acknowledge the trust deed.\nThe bill of complaint charges that she, with August Fischer, her husband, did execute and deliver said trust deed, and that the same was duly acknowledged and recorded. The trust deed shown in the record appears to have been duly acknowledged by Wilhelmina Fischer on the 19th day of March, A. D. 1887, before Otto Heper, a notary public, whose certificate of such acknowledgment, together with his notarial seal, are placed upon said trust deed.\nThere is no pretense of fraud or collusion upon the part of said notary. Under these circumstances the uncorroborated oath of Wilhelmina Fischer could not have prevailed against such certificate had she seen fit to appear before the master, as she had ample opportunity, and testify to what she avers in her petition. Heacock v. Lubuke, 107 Ill. 396; Berdel v. Egan et al., 125 Ill. 298.\nThe decree of the Superior Court is affirmed.\nShepard, J., dissents.", "type": "majority", "author": "Mr. Justice Waterman" } ], "attorneys": [ "Rufus King, attorney for appellant.", "Lackner & Butz, attorneys for appellees." ], "corrections": "", "head_matter": "Wilhelmina Fisher v. Katharina Stiefel and Otto C. Butz.\n1. Parties\u2014Trustee\u2014Removal from the State.\u2014When a trustee named in a trust deed providing for a successor in case of his removal, etc., removes from the State, he is not a necessary party to a foreclosure suit.\n2. Chancery Practice\u2014Preservation of Facts\u2014Recitals in Decrees. \u2014The recitals in the decree are a sufficient preservation of the facts upon which the decree is based.\n3. Same\u2014Absence of a Certificate of Evidence.\u2014In the absence of a certificate of evidence preserving all the evidence heard by the court, it will be presumed that the findings were warranted by the proofs heard by the court.\n4. Acknowledgment\u2014Impeachment of Certificate of Notary.\u2014In the absence of fraud or collusion on the part of the notary, the uncorroborated oath of the person acknowledging a deed can not prevail against the certificate.\nForeclosure, of trust deed. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard at the October term, 1895.\nAffirmed.\nOpinion filed February 11, 1896.\nStatement of the Case.\nOn January 26, 1893, appellees filed their bill in the Supreme Court of Cook County, Illinois, to foreclose a deed of trust in the nature of a mortgage, given by August Fisher and Wilhelmina Fisher, his wife, conveying property, therein described, to Arnold W. Eschenburg, trustee, Otto C. Butz being named as successor in trust as security for a note held by appellee Stiefel, as executrix under the last will and testament of Herman Stiefel, deceased. Issues being joined, the cause was, March 15, 1894, referred by the court to a master \u201c to take proofs herein and report the same to this court with his opinion on the.law and evidence.\u201d\nThe master made up his report, and notice was served upon all parties that on March 14, 1895, said master\u2019s report would be filed, and an entry of a final decree of sale, approving said report, would be asked for. On said date a decree of sale was entered without objection being made. On March 27, 1895, after the entry of said decree of sale, Mrs. Wilhelmina Fisher prayed that the decree entered in this proceeding be set aside, upon the ground that she had not been allowed an opportunity to put in a defense to complainant\u2019s bill, and that she did not execute the said trust deed.\nUpon a hearing of the said petition, the court below denied the prayer thereof. An appeal was taken from this order, and from the decree. This is the appeal now before this court.\nThe record does not contain a certificate of evidence.\nRufus King, attorney for appellant.\nLackner & Butz, attorneys for appellees." }, "file_name": "0580-01", "first_page_order": 576, "last_page_order": 579 }