Dunn v. Rodgers

43 Ill. 260

• Court: Illinois Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Mr. Chief Justice Walker

delivered the opinion of the Court:

It has been held, that the court may authorize a sheriff to amend his return, either before or after the rendition of a judgment or decree. And this, too, without notice to the opposite party of an intention to apply for leave to amend. Montgomery v. Brown, 2 Gilm. 581; Moore v. People, 3 id. 149; Johnson v. Donnell, 15 Ill. 97; Morris v. Trustees of Schools, id. 266; Turney v. Organ, 16 id. 43. The indorsement made by the sheriff is not the service, but only affords evidence of the fact? Where the sheriff amends his return, he by no means changes the fact, but simply the evidence. He makes the return and the amendment on his responsibility and at his peril. If false, as amended, he is liable to an action for a false return. There was therefore no error in the return, as amended, upon which the decree sought to be reversed by this bill was based. When the amendment was made, the error was removed and could not be urged under the bill of review.

It is again insisted, that the original decree was erroneous, as it was rendered far too large an amount. By the terms of the note, to secure which the mortgage was given, it provided for the payment of twelve per cent interest, semi-annually and in advance. There were then four installments due, which amounted to the aggregate sum of eighty-four dollars, as interest. The note and mortgage provided for the payment, by the debtor, of a lawyer’s fee, and for expenses and trouble of the treasurer if suit should be brought. The decree sought f O' be reversed recites, that the master had reported eighty-four dollars interest as being due, and a solicitor’s fee of twelve dollars, and approves the report and orders the payment of ninety-six dollars, within thirty days, and in default thereof, orders the sale of the mortgaged premises. It is insisted, that the master reported a solicitor’s fee of but ten dollars. This is true, but he also reported two dollars for the treasurer’s expenses, making the sum, when added, required to be paid by the decree. But, if this were not so, we should not be disposed to reverse a decree for so small a mistake in the sum due.

It is insisted, that the court erred in the rendition of the decree, which this bill seeks to reverse, by ordering the defendants to pay the money, plaintiff in error only being a nominal party, he having purchased the premises of Cook, subject to the mortgage. While the decree would have been more regular, had it been against Cook alone, for the money, still it appears that plaintiff in error has no right to complain, as the error was removed by the sale of the mortgaged premises. A decree against him, unsatisfied by the sale of Cook’s property, might affect him, as in such a case, it would have -left him liable for the decree; but the objection to the decree was removed by selling the premises and satisfying the decree.

When plaintiff purchased the property of Cook, he succeeded to his rights, but nothing more. Cook, or his heirs, had twelve months within which to redeem, and by the purchase of the equity of redemption he acquired that right. And, having failed to exercise it, and having been made a party to the suit to foreclose, and to the decree, his rights are barred, and the equity of redemption foreclosed, As the foreclosure was not strict, the defendants to the decree had twelve months, under the statute, within which to redeem, and creditors three months longer. But plaintiff in error, not being a creditor, cannot claim, the right longer than twelve months.. Ross v. Mead, 5 Gilm. 171. Eo error is perceived in this record for which the decree of the court below should be reversed,, and it is therefore affirmed.

Decree affirmed.