Bradley v. Drone

Mr. Justice Wilkin delivered the opinion of the court:

As a basis for asking the removal of the administrator’s deeds as clouds upon the title of plaintiffs in error, it is urged that the proceedings in the county court under which the real estate in question was sold were wholly without jurisdiction, and void. This is clearly a collateral attack upon the proceedings of the county court. In Moore v. Neil, 39 Ill. 256 , (a similar case then before this court,) it was held that such a proceeding as this, where the defendant’s title. derived from the administrator’s sale is sought to be divested, is as purely collateral as an action of ejectment. (Swearengen v. Gulick, 67 Ill. 208 ; Harris v. Lester, 80 id. 307 ; Spring v. Kane, 86 id. 580; Matthews v. Hoff, 113 id. 90; Field v. Peeples, 180 id. 376.) Being a collateral attack upon the county court proceedings, the rule is that nothing is presumed to be out of its jurisdiction but that which specially appears to be so. In Matthews v. Hoff, supra, where the jurisdiction of the county court was attacked collaterally, we said (p. 96): “Every presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction, and county courts in this State are courts of general jurisdiction with respect to all matters coming within the purview of their jurisdiction as given by law.” See, also, Field v. Peeples, supra, and cases cited.

The petition of counsel for plaintiffs in error is, that the record of. the proceedings oE the county court upon its face shows an absence of jurisdiction, because, it is said, the petition filed by the administrator, asking for an order to sell real estate to pay debts, fails to allege the necessary facts with reference to amount of claims allowed, the estate on hand and the manner of disposing of the same, and the amount of claims paid. While we are satisfied the petition is a substantial compliance with the requirements of the statute, the objections pointed out, if well founded, are at most but mere irregularities, and are not open to review in this collateral proceeding. There may be errors in the proceedings to sell land which might, on direct appeal, lead to a reversal of the order; but where, as here, the proceeding to sell is attacked collaterally, as is.held in the case last above cited it can not be defe'ated or impeached for mere errors.

It is next contended the summons issued on the day the petition was filed, and being made returnable to the November term following, was void because the October term of the county court intervened, it being insisted that the petition should have been addressed to the first term thereafter (the October term) and the summons made returnable to that term. The decree which was rendered at the December term following, as shown by the foregoing statement, recites that “all of the defendants have been duly served with process or by publication in a newspaper, as the law requires, more than the lawful time prior to sitting of the court, and the court doth find that this court has jurisdiction both of the parties defendant and complainant, and the subject matter of the suit,” etc. Even conceding the summons of September 19 void for the reasons urged, yet from the finding that due service by summons was had upon the defendants it will be presumed, in a collateral attack, that another, and proper summons was issued and served. “All reasonable presumptions are in favor of the jurisdiction of the court, and the law will presume, prima facie, at least, from the finding of the court, that such was the fact; that such summons, with the proper return on it, was before the court and may have been abstracted or lost from the files.” Matthews v. Hoff, supra, and cases cited.

It is also said the publication notice to non-resident Mary E. Evans was based upon the void summons of September 19, and no presumption that a proper publication was had can be indulged because there was not sufficient time for such notice. As in the case of personal service of summons, it will be presumed from the recitals of the decree as to the jurisdiction, that, in ample time before the decree was rendered, proper publication notice was had and a correct certificate of mailing of notice and of publication was before the court.- The defective certificate of publication and mailing, which appears in the record, is not the only evidence of that fact, and we must presume that other evidence was offered as a basis for the finding of the court. Barnett v. Wolf, 70 Ill. 76 ; Harris v. Lester, supra.

It being established that the bill of complainants must be'treated and considered as an attempt to collaterally attack the proceeding by the administrator and his deeds to the-several purchasers, and that the county court had jurisdiction both of the subject matter and the persons of the heirs of the intestate, all other alleged errors are unavailing as grounds for declaring void and setting aside that proceeding and the conveyances thereunder. The failure to set off the homestead of the infant, and the other errors urged, are, at most, but mere irregularities intervening in the county court and upon the administrator’s sale, and, as we have shown above, cannot be availed of in a collateral attack. We deem it unnecessary, therefore, to give further attention to them.

The decree of the circuit court dismissing the bill will be affirmed.

Decree affirmed.

Mr. Chief Justice Boggs having heard this cause in the circuit court took no part in the decision here.