{
  "id": 828294,
  "name": "Thomas R. Armstrong v. Henry Warrington et al.",
  "name_abbreviation": "Armstrong v. Warrington",
  "decision_date": "1884-11-17",
  "docket_number": "",
  "first_page": "430",
  "last_page": "431",
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    {
      "type": "official",
      "cite": "111 Ill. 430"
    }
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  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "29 Ill. 552",
      "category": "reporters:state",
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      "cite": "33 Ill. 366",
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      "cite": "2 Gilm. 640",
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        2558221
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    {
      "cite": "103 Ill. 440",
      "category": "reporters:state",
      "reporter": "Ill.",
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    {
      "cite": "29 Ill. 552",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T16:41:16.672046+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Thomas R. Armstrong v. Henry Warrington et al."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Mulkey\ndelivered the opinion of the Court:\nThe principal question involved in this case, and, indeed, the only one we deem of sufficient importance to notice, is, whether one holding a junior mortgage, who has been brought into court upon a bill to foreclose a prior mortgage, will, upon answer disclosing his interests, be entitled, in the event of a sale of the mortgaged premises, to have the surplus, after satisfaction of the prior mortgage, applied to the payment of his own, without filing n cross-bill. This question must be answered in the affirmative. It is not a new one in this court, and so far as we are advised the ruling upon it has uniformly been in conformity with the conclusion just stated. Ellis v. Southwell, 29 Ill. 552; Walker v. Abt, 83 id. 226; Sales v. Shephard, 99 id. 621.\nThe judgment of the Appellate Court which is sought to be reversed by the present writ of error being in conformity with this view of the law, is therefore affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Justice Mulkey"
      }
    ],
    "attorneys": [
      "Messrs. G. W. & J. T. Kretzinger, for the plaintiff in error:",
      "Messrs. Abbott & Johnson, for the defendants in error s"
    ],
    "corrections": "",
    "head_matter": "Thomas R. Armstrong v. Henry Warrington et al.\nFiled at Ottawa November 17, 1884.\nCboss-bhiIi \u2014 decree of foreclosure \u2014 as to surplus \u2014 to junior mortgagee without cross-bill. On bill to foreclose a prior mortgage, in case of a sale the junior mortgagee will be entitled to the surplus, after satisfying the first mortgage, upon his answer alone, disclosing his interest, without filing a cross-bill.\nWrit oe Error to the Appellate Court for the First District ; \u2014 heard in that court on writ of error to the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.\nMessrs. G. W. & J. T. Kretzinger, for the plaintiff in error:\nTo obtain affirmative relief a defendant must file a cross-bill. White v. White, 103 Ill. 440 ; Tarleton v. Vietas, 1 Gilm. 470; Edwards v. Helm, 4 Scam. 143; McConnell v. Hodson, 2 Gilm. 640; Mason v. McGirr, 28 Ill. 322; McCagg v. Heacock, 42 id. 153.\nThe answer of defendant Sarah J. Armstrong being purely a defensive one, to defeat a foreclosure, it was error to decree her affirmative relief.\nThis court has held that a defendant, after fully answering the bill, may state facts upon which to pray for affirmative relief, making his pleading both answer and cross-bill, (Thielman v. Carr, 75 Ill. 389, Purdy v. Henslee, 97 id. 394,) though the contrary is held in McConnell v. Hodson, 2 Gilm. 640.\nMessrs. Abbott & Johnson, for the defendants in error s\nThomas E. Armstrong was not entitled to notice of the taking of the evidence before the master, being in default. Moore v. Titman, 33 Ill. 366.\nOn bill to foreclose, the practice is to ascertain and settle the rights of all persons, and direct the application of the proceeds of the sale, in satisfaction of each incumbrance, according to priority, \u2014 and this, too, whether junior mortgagees shall or shall not file cross-bills. Ellis v. Southwell, 29 Ill. 552; Walker v. Abt, 83 id. 226."
  },
  "file_name": "0430-01",
  "first_page_order": 430,
  "last_page_order": 431
}