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Besides requiring a petition, notice is required to be given to the administrator. As the order recited the appearance of the administrator in court, no further notice to him was necessary, and the statute does not require notice to be given to any one else. It is true that the bond is a contract, and that its real beneficiaries are the heirs, creditors, etc., but the contract of the bond must be construed as all other contracts are,—that is, that the statutes in force at the time of making such contract are to be considered as a part of the same. When this bond was executed the statute provided a method for releasing the surety, and whatever rights any beneficiaries may have acquired under the bond were acquired with the condition that the contract might be terminated as provided in the statute. Section 35 carefully guards the rights of all beneficiaries by providing that before a surety on the bond of an administrator can be discharged he must settle his accounts and pay over whatever balance may be found in his hands. It is not material, when considering this section, as supposed by counsel, what the legislature may have subsequently provided in regard to the release of sureties on bonds of guardians and conservators. In the case at bar the court found that the administrator had $4978.15 on hand, but no order to pay over is found nor any report of such payment. If it be said that the probate court could not, at the time of the filing of the petition of the administrator, have entered an order on him to pay over to the distributees the bal. ance in his hands, as required by the statute, this would prove nothing more than that the surety could not then be discharged under said section 35.

The courts have no power to waive compliance with the statute, but the surety, in seeking to avail himself of its benefits, must comply with its provisions. (Haywood v. Collins, 60 Ill. 328; Munroe v. People, 102 id. 406; Black on Judgments, sec. 279; Sutherland on Stat. Const. sec. 392; 12 Am. & Eng. Ency. of Law, 276.) The proceeding to release sureties is statutory and of a summary character, requiring no notice to the parties ultimately entitled to the fund, and the statute cannot be extended, by construction, to authorize the discharge of a surety on the application of the principal in the bond, in the absence of any provision in the statute authorizing it. llickerson v. Price, 2 Heisk. 623.

The orders of the probate court releasing appellee as surety on the administrator's bond were therefore void, and should have been vacated and set aside. The judg. ments of the Appellate and circuit courts are reversed, and the cause is remanded to the probate court of Cook county with directions to set said orders aside, as prayed.

Reversed and remanded.


171 243 172 391


THE PEOPLE, for use of Frank J. Degan.

Opinion filed December 22, 1897Rehearing denied February 4, 1898.

1. PRACTICE-a defendant served with summons is presumed to know that amendments may be made. A defendant served with summons is presumed, in law, to be constantly in court, and, under the further presumption that he knows the law, he is charged with notice that by leave of court the plaintiff may make any amendment necessary to sustain his cause of action.

2. SAME-defendant served with summons is charged with notice of steps taken in case.

A defendant served with summons must take notice that the cause may be continued from term to term, and, in the absence of rules of court to the contrary, he is entitled to no special notice of continuances, or of amendments at,the current term, or of orders made at a later term to which the cause is continued.

3. RES JUDICATA-final order of probate court binds sureties on guardian's bond as to amount due ward. An order of the probate court, on final settlement with a guardian, finding the amount due to the ward, is conclusive upon the guardian's bondsmen in a suit on the bond, and can be impeached only for fraud or mistake. (Ryan v. People, 165 Ill. 143, followed.)

Niehoff v. People, 66 Ill. App. 669, affirmed.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on writ of error to the Circuit Court of Cook county; the Hon. ABNER SMITH, Judge, presiding.

AXEL CHYTRAUS, and WILLIAM S. YOUNG, for plaintiff in error:

If a defendant has been served but has not appeared, and an amended declaration is filed subsequently to a default upon the original declaration, it is error to enter a judgment upon the new cause of action without any notice and rule upon the defendant to plead to such amended declaration, and particularly so if he is not actually in court at any time, when he might be held to have waived his right to plead by his acquiescence in the proceedings. Scott v. Cromwell, Breese, 25; Griswold v. Shaw, 79 Ill. 449.

Where a default is vacated by filing an amended declaration, it is error to enter a judgment upon such amended declaration without an issue or a default thereon. Lehr v. Vandeveer, 48 Ill. App. 511; Crabtree v. Green, 36 Ill. 278.

Where there is no appearance the plaintiff proceeds at his peril. It is true, the law declares a defendant who is served is in court for certain purposes. A plaintiff may prosecute the suit he has brought to judgment, but he can not substitute another suit for it. Smitherton v. Owens, Wright, (Ohio,) 574.

Where judgment is taken by default, the plaintiff is confined to a recovery of the particular amount or thing demanded in the prayer of the complaint. Burling v. Goodman, 1 Nev. 314.

A default admits nothing but what is properly alleged. Cronan v. Frizell, 42 Ill. 319.

As a lis pendens, an amendment setting up a "different ground" for relief will not relate back. Stone v. Connelly, 71 Am. Dec. 499; Dudley v. Price, 10 B. Mon. 88.

Where a declaration is not filed until after the commencement of the second term after service, it is error to

enter a judgment by default without a rule, and a service of it, requiring the defendant to plead. Moody v. Thomas, 79 Ill. 274.

Defendants who have been served but have not appeared are entitled to notice or service anew when an amendment is made which goes to the cause of action. Works on Jurisdiction of Courts, 306; Janney v. Spedden, 38 Mo. 393; Morrison v. Walker, 22 Tex. 18; Furlow v. Miller, 30 id. 28; Stewart v. Anderson, 70 id. 588; McRae v. Brown, 15 id. 507.

A party in court for one purpose is not there for very other purpose. 9 Mo. 638; Smith v. Rollins, 25 id. 408; Lincoln v. Hilbus, 36 id. 149.

CASE & HOGAN, for defendants in error:

A judgment by default for want of a plea cannot be set aside because wrongfully entered, after the term lapses at which it was rendered. The jurisdiction is at an end. Maple v. Havenhill, 37 Ill. App. 313; Gage v. Chicago, 141 Ill. 612; Kelly v. Chicago, 148 id. 90; Leonard v. The Times, 51 Ill. App. 427.

A default admits every ground upon which a recovery is sought. Insurance Co. v. Kellogg, 82 Ill. 614.

Mr. CHIEF JUSTICE PHILLIPS delivered the opinion of the court:

An action of assumpsit was brought by Frank J. Degan, against Joseph F. Goergen, Michael W. Ryan and Conrad L. Niehoff, who were served with summons on March 8, 1895. A declaration containing the common counts only was filed on March 22, 1895. On March 26 leave was granted to amend all papers so as to make the suit in the name of the People of the State of Illinois, for the use of Frank J. Degan, and on the same day leave was granted to file an additional count instanter. This additional count was a count in debt, and alleged Frank J. Degan was a minor, and that Joseph F. Goergen was appointed his guardian, and executed a bond with Conrad Niehoff and Michael W. Ryan as sureties, which bond was duly approved, and after setting forth the liability under the bond a breach is alleged that certain moneys came to the hands of the guardian which he converted to his own use and failed to turn over to the plaintiff. After the filing of this count, and on April 1, 1895, a default was entered against Goergen and the plaintiff in error. The common counts were afterward withdrawn. Michael W. Ryan pleaded to the declaration, and subsequently an amended declaration, which amounted to an additional count, was filed by Degan and issue found thereon. This latter declaration was substantially the same as the former, the only material difference being, it was averred in the first amended declaration that money came to the hands of the guardian from the proceeds of rents and sale of real estate, and in the latter it was averred that money came to the hands of the guardian as the proceeds of moneys and profits of the personal estate. Under the issues made on these pleadings a trial was had with a jury, who found adversely to Ryan. The verdict of the jury was, at the request of counsel for defendant in error, against all of the defendants, and the assessment of the damages was placed at $1226.48. From that judgment Ryan prosecuted an appeal to the Appellate Court for the First District, where the judgment was affirmed, and then prosecuted an appeal to this court, where the judgment of the Appellate Court was affirmed, and is reported as Ryan v. People, 165 Ill. 113. Niehoff, Ryan's co-defendant below, has brought the case to this court by writ of error. The record in this case is the same as in that case.

The guardian's bond was in evidence, as also an entry on the record of the probate court, which entry is set out in full in the Ryan case, by which it appears a final account of the guardian was presented, and there was found due the ward, at the time of entering that order, a total sum of $1191.51. That order was held admissible

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