« AnteriorContinuar »
this registration proceeding, alleging that during the pendency of the original application to register, and at the time the decree was entered, he had no notice or knowledge of such application and did not acquire such knowledge until July 1, 1906. He was thereupon permitted to contest the merits of the original application. In 1907 Andrew P. Anderson sued out a writ of error to this court in the suit of said Hans C. Anderson against him to set aside the conveyance heretofore mentioned, and this court reversed the decree of the lower court, holding that the affidavit upon which the service of publication was based was not in accordance with the statute. (Anderson v. Anderson, 229 III. 538.) The cause was re-docketed, and on a hearing November 30, 1907, the bill was dismissed for want of equity.
Joseph Kuzak filed an answer in this registration matter and a hearing was had as to the ownership of said lot. The decree sought here to be reversed is the one entered in the land registration proceeding. It found Joseph Kuzak to be an innocent purchaser from Hans C. Anderson, without notice, actual or constructive, of any defects or irregularities in the circuit court case to set aside the deed. This decree stated, among other things, that on January 6, 1903, an order of default was entered in said circuit court which recited the filing of “due proof of notice to said defendant Andrew P. Anderson of the pendency of this suit, by publication, according to the statute in such case made and provided,” and thereupon it was ordered that the bill of complaint be taken as confessed, and that the decree in said circuit court cause recited that the cause came on for hearing on the bill “taken as confessed by the defendant, Andrew P. Anderson," and further recited “that all parties are properly before the court and that the court has jurisdiction of the subject matter and of the parties hereto." This decree further found that the suing out of the writ of error to the Supreme Court in said circuit court case did
not constitute notice of error binding upon Joseph Kuzak; that as no supersedeas had issued from said Supreme Court on said writ of error said writ of error was not lis pendens, and that the title said Joseph Kuzak acquired relying upon the decree of the court in said circuit court case was not affected or impaired by the subsequent reversal of the decree under the writ of error by the Supreme Court. The decree herein further found that the equities of the case were with said Joseph Kuzak and against Andrew P. Anderson, and that the decree in said registration matter be not re-opened or changed but that the same stand as confirmed against Andrew P. Anderson and in favor of Joseph Kuzak. The evidence in this record bears out these findings in the decree.
The rule of law in this State is, that where a decree affecting the title to property has been rendered by a court of equity, the rights of a purchaser who buys in good faith, relying upon the decree, before a writ of error is sued out or other action taken to avoid it, will be protected, notwithstanding the decree is afterward reversed. (Hopkins v. Patton, 257 Ill. 346; Hammond v. People, 178 id. 503; Lambert v. Livingston, 131 id. 161.) The decree in the circuit court case of Anderson v. Anderson, supra, was reversed by this court October 23, 1907. The deed conveying this lot to Joseph Kuzak was executed and delivered February 7, 1905, and recorded with the registrar of land titles the next day. No supersedeas was issued in the case of Anderson v. Anderson, supra, so that under the authorities the suing out of the writ of error was not notice to an innocent purchaser until after the reversal and remanding of the cause. Chicago and Northwestern Railway Co. v. Garrett, 239 Ill. 297, and cases cited.
This proceeding to register the title is collateral to the proceeding in the circuit court to set aside said deed. In all collateral proceedings every presumption is to be indulged in favor of the decrees of courts of general juris
diction. An erroneous judgment is not void if the court had jurisdiction of the subject matter. Such jurisdiction is the power to adjudge concerning the general question involved, and if a bill states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches and no error committed by the court can render the judgment void, and the judgment, however erroneous, is not void but is binding upon the parties until reversed or annulled and is not open to collateral attack. (Miller v. Rowan, 251 Ill. 344, and cases cited.) The defendant in Anderson v. Anderson, supra, was brought into court by a publication notice. Where a decree attacked in a collateral proceeding finds that the parties have been duly notified, such finding, like any other judicial determination, cannot be contradicted or varied beyond or outside of the record itself. Where a notice is given by publication, a publisher's certificate contrary to a finding that due notice has been given will not, in a collateral proceeding, defeat such finding, as the court may have based its decree on other evidence as to notice. (Spring Creek Drainage District v. Commissioners of Highways, 238 Ill. 521.) “A party who has purchased land under the judgment of a court of competent jurisdiction, bona fide and with no notice of any such defects as the absence of a summons or notice, should not be put in jeopardy of his title or be required to take the risk of the loss or abstraction of a loose paper from the files, when the decree or judgment of the court recites the fact that process was duly served or the required notice duly given.” (Bowen v. Bond, 80 Ill. 351.) In case of service of summons which is insufficient to confer jurisdiction, parol evidence cannot be heard to prove or aid the service. Where, however, the service is by publication, parol evidence may be received to prove that the notice was published. Where the decree attacked in a collateral proceeding finds that the defendant has been duly notified of the pendency of the suit by publication, proof is
inadmissible to show that the notice contained in the record was the only publication ever made and was the one upon which the court must have acted. (Reedy v. Camfield, 159 Ill. 254; Figge v. Rowlen, 185 id. 234; Stack v. People, 217 id. 220; Pine Tree Lumber Co. v. Stock Exchange, 238 id. 449.) The circuit court in Anderson v. Anderson, supra, having jurisdiction of the subject matter, and the irregularity in the proceeding being based upon an affidavit of publication, under the authorities cited that decree cannot be attacked in this collateral proceeding so far as it affects Joseph Kuzak, he having purchased the lot in good faith, without actual or constructive notice of such defect, before the suing out of the writ of error or the reversal of said cause by this court.
The decree of the circuit court in this proceeding must therefore be affirmed.
The RAILROAD AND WAREHOUSE COMMISSION ex rel. The
St. Louis, Springfield and Peoria Railway Company,
Opinion filed April 22, 1915. This case is controlled by the decision in Railroad and Warehouse Commission v. Peoria and Pekin Union Railway Co. (ante, P. 462.)
APPEAL from the Circuit Court of Sangamon county; the Hon. JAMES A. CREIGHTON, Judge, presiding.
STEVENS, MILLER & ELLIOTT, (GILLESPIE & FITZGERALD, of counsel,) for appellant.
EVERETT JENNINGS, JAMES A. KNOWLTON, and GRAHAM & GRAHAM, (GEORGE M. MORGAN, and GEORGE W. Burton, of counsel,) for appellee.
Mr. JUSTICE CARTER delivered the opinion of the court:
Appellee, the St. Louis, Springfield and Peoria Railroad Company, filed its petition with the Illinois Railroad and Warehouse Commission for permission to cross at grade one main and one side-track of appellant, the Peoria and Pekin Union Railway Company, in the city of Peoria. An order was entered in accordance with the prayer of the petition, which, on appeal to the circuit court of Sangamon county, was affirmed. This appeal has been taken to reverse that judgment.
The principal question urged here is that the right of appellee to cross appellant's tracks was not an absolute one but rested within the sound discretion of the Railroad and Warehouse Commission, subject to review by the courts. All parties agree that this question is the same as that raised by appellant in Railroad and Warehouse Commission v. Peoria and Pekin Union Railway Co. (ante, p. 462.) What is said in that case on this question must control here.
Counsel further argue that the proposed crossing is so dangerous as to be a menace to life and property. The crossing in this case is very close to the one involved in the case just cited. Counsel for appellant argue that while the traffic conditions at this crossing are substantially the same as at the crossing in that case, yet the conditions here make a grade crossing even more dangerous than in the other case. It is admitted by counsel that if there is any crossing permitted to appellee it must be a grade crossing at or very near the point where it was allowed. We have read the evidence in this case and can reach no other conclusion than that while such crossing may impede or endanger travel or transportation upon appellant's railroad it does not unnecessarily do this. The facts in this record justify the order entered by the commission and affirmed by the circuit court. The judgment of the circuit court will be affirmed.