{ "id": 5260631, "name": "C. Figge v. Frank S. Rowlen, Amanda C. Rowlen and M. Fenwick", "name_abbreviation": "Figge v. Rowlen", "decision_date": "1899-09-05", "docket_number": "", "first_page": "238", "last_page": "243", "citations": [ { "type": "official", "cite": "84 Ill. App. 238" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "133 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5427337 ], "opinion_index": -1, "case_paths": [ "/ill/133/0197-01" ] }, { "cite": "128 Ill. 302", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "99 Ill. 366", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2829784 ], "opinion_index": -1, "case_paths": [ "/ill/99/0366-01" ] }, { "cite": "100 Ill. 204", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2822645 ], "opinion_index": -1, "case_paths": [ "/ill/100/0204-01" ] }, { "cite": "86 Ill. 313", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2773934 ], "opinion_index": -1, "case_paths": [ "/ill/86/0313-01" ] }, { "cite": "103 Ill. 529", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "69 Ill. 641", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2637273 ], "opinion_index": 0, "case_paths": [ "/ill/69/0641-01" ] }, { "cite": "85 Ill. 27", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "125 Ill. 247", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2938177 ], "opinion_index": 0, "case_paths": [ "/ill/125/0247-01" ] }, { "cite": "133 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5427337 ], "opinion_index": 0, "case_paths": [ "/ill/133/0197-01" ] } ], "analysis": { "cardinality": 478, "char_count": 11618, "ocr_confidence": 0.581, "pagerank": { "raw": 6.824473444204289e-08, "percentile": 0.41665131828149055 }, "sha256": "e2e3e6359e0d6461359e8e73e24c9c75752644a140ae9ba9a461aabd9fbc09cf", "simhash": "1:8932d7b214389e32", "word_count": 2018 }, "last_updated": "2023-07-14T19:05:11.837712+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. Figge v. Frank S. Rowlen, Amanda C. Rowlen and M. Fenwick." ], "opinions": [ { "text": "Hr. Justice Creighton\ndelivered the opinion of the court.\nThis was a bill in chancery in the Circuit Court of Saline County, by appellant against appellees, to foreclose a mortgage on certain real estate. Trial was had on .evidence produced in open court, resulting in a decree dismissing appellant\u2019s bill.\nThe only errors assigned are, that the court admitted improper evidence on behalf of appellees, and acted on such evidence in dismissing appellant\u2019s bill.\nIn 1887 one Robert Mehaffy, a citizen of the State of Ohio, owned the land in question; on the 16th day of December, of that year, he executed to appellee Frank S. Rowlen a deed to it; on the 7th day of July, 1888, Mehaffy filed a bill in the Circuit Court of Saline County against Rowlen to cancel the deed on the ground of fraud ; on the 19th day of July, 1888, Rowlen and his wife, Amanda C., executed a mortgage on the land to appellant purporting to secure the sum of \u00a75,000, to become due the following February; at the September term, 1888, of the court, Rowlen made default, and upon a hearing the court found that the deed had been procured by fraud and decreed its cancellation. In the meantime appellant had placed his mortgage on record in Saline county, and on the 13th day of April, 1891, Mehaffy Sled his bill in said court against appellant to cancel his mortgage; at the following- September term appellant also made default, and upon a hearing the court rendered a decree canceling the mortgage. There the matter rested until July 23, 1895, when appellant filed his bill in this case to foreclose his mortgage, making appellees Rowlen and Amanda 0., his wife, parties defendant, together with appellee Fenwick, who in 1895 had purchased the land from Mehaffy; the Rowlens made default, but appellee Fenwick answered, settingup as a defense his deed from Mehaffy, the pendency, at the time appellant obtained his mortgage, of Mehaffy\u2019s bill against Rowlen for cancellation of Rowlen\u2019s deed, and the decree canceling Rowlen\u2019s deed and appellant\u2019s mortgage.\nUpon the trial appellee Fenwick offered, and the court admitted, over appellant\u2019s objection, the decree in the case of Mehaffy v. Rowlen canceling the deed from Mehaffy to Rowlen, and the decree in the case of Mehaffy v. Figge canceling the mortgage from Rowlen to Figge. Appellant\u2019s counsel contend that the decree against Rowlen is wholly irrelevant and that both decrees are void. While it appears that the mortgage from Rowlen to appellant was executed after Mehaffy had filed his bill against Rowlen to - cancel the deed, it was before service had, therefore appellant did not take his mortgage Us pendens, and is not barred by that decree. In Hallorn v. Trum, 125 Ill. 247, it is held that Us pendens does not exist until the defendant in the bill has been duly served, and in Vol. 13, at page 885, Am. & Eng. Ency. of Law, it is said: \u201c In the case of service by publication the Us pendens will not commence until the time of the completion of the publication.\u201d That decree is not material evidence in the case and it is not necessary for us to determine here whether it is void or valid as against Rowlen.\nThe case then turns upon the question as to the validity of the decree against appellant, canceling his mortgage. If that decree is valid when, collaterally attacked, as in this case, then it was material evidence, was properly admitted, barred appellant\u2019s right to foreclose, and warranted the court in dismissing his bill.\nAppellant\u2019s counsel contend that the decree is absolutely void for want of jurisdiction over the subject-matter. They assert that the bill is one to remove appellant\u2019s mortgage as a cloud from the title, and that it does not contain the averment that Mehaffy, the complainant therein, was in possession of the premises, nor that they were unimproved and unoccupied, and they quote from Glos v. Randolph, 133 Ill. 197:\n\u201c There are but two cases, under our statute, in which a bill to remove a cloud from the title can be maintained, viz., where the complainant is in possession of the premises, or where they are unoccupied.\u201d\nMany cases are cited to the same effect.\nIt is true, as contended, that if the court that rendered the decree had, under the law, no jurisdiction over the subject-matter embraced in the decree, then the decree is void and can no more stand against a collateral attack than if attacked in a direct proceeding; but it is also true that if the court did, under the law, have jurisdiction over the subject-matter, then the decree will not yield to collateral attack. The test is, would that court, under any circumstances, have legal authority to render such decree; if so, then it had jurisdiction over the subject-matter, and the particular circumstances moving it, in that particular case, can not be inquired into in this collateral proceeding. Courts of equity have jurisdiction over the subject-matter to remove a cloud from the title to real estate, and are the only courts in this State that do have such original jurisdiction. We are of opinion that the decree is not void for want of jurisdiction of the court over the subject-matter.\nCounsel also contend that the decree is void for want of jurisdiction over the person of appellant in that case. It is admitted in the answer that he was not served with summons or copy of the bill, and that no notice of publication was mailed to him. The decree finds: Return of summons \u201cnot found;\u201d that defendant was not a resident of this State; that his place of residence was unknown, and upon ' diligent inquiry could not be found; and that due notice of the pendency of the suit had been given by publication, in accordance with the requirements of the statute. Counsel for appellant offered in evidence, in .rebuttal, the files of the case in which the decree was rendered, among them being the following affidavit:\nRobert Mehaffy, the above named complainant, on oath, states that the above named defendant, C. Figge, is not a resident of the State of Illinois. Affiant further states that he has made diligent inquiry to learn the place of residence of said defendant, but has been unable to ascertain the same.\nR. Mehaffy.\nSubscribed and sworn to this 9th day of April, 1891.\nW. H. Cunningham,\n[Seal.] Notary Public, Allen County, Ohio.\u201d\nThey contend that this affidavit is a nullity, because .there is no certificate of the notary who administered the oath; that under the laws of the State of Ohio he was authorized to administer oaths. It is trae a court can not presume that a notary public of another State has'authority in that State to administer oaths, and the authority of the officer administering the oath must be shown in some way, or the affidavit will be treated as a nullity; but there is no law requiring that fact tobe shown to the court in any particular way. I.t may be shown by any competent evidence, and the court having found in the decree that due notice of the pendency of the suit had been given by publication in accordance with the requirements of the statute, the presumption is that it was shown in some proper way. This presumption is conclusive against collateral attacks, unless overthrown by such state of the whole record as excludes the possibility of the finding being true. The record in the case under discussion shows no such condition.\nIn Sloan v. Graham, 85 Ill. 27, it is said:\n\u201c Had service in the proceeding * * * been made bj7 summons, and it appeared from the summons and return that the service was not sufficient to give the court jurisdiction over defendants, as was held in the cases cited, the presumption of service arising from the finding of the court might be overcome (where decree was rendered at first term of court after the bill was filed). But here the service . was by publication of notice, and for aught that appears, the court did not act upon the notice on file. * * * Such is not the only evidence that may be resorted to to prove to the satisfaction of the court due publication of notice.\u201d\nCounsel insist that such presumption can not exist in this case, because the evidence is not preserved in the record.\n\u201c The failure to preserve the evidence in the record * * * in nowise affects the jurisdiction, and can not be urged in a collateral proceeding.\u201d Moffitt v. Moffitt, 69 Ill. 641.\nIn Black on Judgments, Vol. 1, 273-4, it is said:\n\u201c On the other hand, if it be a judgment or decree of a * * * court of general jurisdiction, and the record declares that notice has been given, such declaration can not be contradicted by extrinsic proof. * * * The record is conclusively presumed to speak the truth, and can (when collaterally attacked) be tried only by inspection.\u201d\nWe are of opinion the court had jurisdiction of the person of appellant in the case in which it rendered the decree canceling his mortgage; that it was not error for the court to admit that decree in evidence in this case, and that the Circuit Court did not err in dismissing appellant\u2019s bill: The judgment of the Circuit Court is affirmed.", "type": "majority", "author": "Hr. Justice Creighton" } ], "attorneys": [ "Choisser, Whitley & Choisser, attorneys for appellant.", "R. S. Marsh, attorney for appellee H. Fenwick." ], "corrections": "", "head_matter": "C. Figge v. Frank S. Rowlen, Amanda C. Rowlen and M. Fenwick.\n1. Lis Pendens\u2014When it Exists\u2014Lis pendens does not exist until the defendant in the bill has been duly served. In the case of service by publication the lis pendens does not commence until the time of the completion of the publication.\n2. Practice\u2014Where a Bill to Remove a Cloud CanbeMaintained.\u2014 There are but two cases under our statute in which a bill to remove a cloud from the title of real estate can be maintained, viz.: where the complainant is in possession of the premises, and where \u2018they are unoccupied.\n3. Jurisdiction\u2014 Of Courts of Eq. ';/ to Remove Clouds from Title. \u2014Courts of equity have jurisdiction of the subject-matter, to remove a cloud from title, and are the only courts in this State which have such ' jurisdiction.\n4. Notaries Public\u2014Of Foreign States\u2014Not Presumed to Have Authority to Administer Oaths.\u2014 A court can not presume that a notary public of another State has authority to administer oaths, and such authority must be shown in some way or the affidavit will be treated as at nullity.\n5. Same\u2014How Authority May Be Shoion.\u2014There is no law requiring the authority of a foreign notary to be shown in any particular way; it \u2022 may be shown by any competent evidence.\n6. Same\u2014Presumptions as to Authority Shown.\u2014Where the court finds in the decree that due notice of the pendency of the suit had been given by publication in accordance with the statute, the presumption is that the officer\u2019s, authority was shown in some proper way.\n7. Practice\u2014Notice of Pendency of Suit\u2014Failure to Pi'eserve Evidence of in the Record Does Not Affect Jurisdiction.\u2014Tire failure to preserve the evidence of notice of the pendency of a suit in the record in no way affects the jurisdiction and can not be urged in a collateral attack.\nBill to Foreclose a Mortgage.\u2014Trial in the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Bill dismissed; appeal by complainant. Heard in this court at the February term, 1899.\nAffirmed.\nOpinion filed September 5, 1899.\nChoisser, Whitley & Choisser, attorneys for appellant.\nTo give a court of equity jurisdiction of a bill to quiet title, or to remove a cloud, the complainant must allege and prove his possession of the premises, or that they are unimproved and unoccupied. Gage v. Parker, 103 Ill. 529; Hardin et al. v. Jones, 86 Ill. 313; Oakley et al. v. Hurlbut, 100 Ill. 204; Gage v. Abbott, 99 Ill. 366; Pratt et al. v. Kendig et al., 128 Ill. 302; Glos et al. v. Randolph, 133 Ill. 197.\nR. S. Marsh, attorney for appellee H. Fenwick." }, "file_name": "0238-01", "first_page_order": 246, "last_page_order": 251 }