Estate of Godair v. Case

Appellate Court of Illinois

Estate of Godair v. Case

220 Ill. App. 348, 1920 Ill. App. LEXIS 243

CourtAppellate Court of Illinois

DecidedDecember 31, 1920

DocketGen. No. 25,717

StatusPublished

Cited by9 cases

This text of 220 Ill. App. 348 (Estate of Godair v. Case) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Estate of Godair v. Case, 220 Ill. App. 348, 1920 Ill. App. LEXIS 243 (Ill. Ct. App. 1920).

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Opinion

Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an action of forcible entry and detainer in which the “Estate of W. H. Godair” is made the plaintiff, and in which it is contended that defendant withholds the possession of certain property from said “Estate of W. H. Godair.” After defendant was served with summons it entered a special appearance and moved to dismiss the case on the ground that plaintiff was not a natural or artificial person, and, as it lacked legal entity to sue or be sued, the whole action failed. Such motion was well founded. (30 Cyc. p. 27; Western & A. R. Co. v. Dalton Marble Works, 122 Ga. 774, 776; Steamboat Pembinaw v. Wilson, 11 Iowa 479.) The record shows that thereupon the attorney appearing for the “Estate of W. H. Godair” admitted that it was not a natural or artificial person, and in response to a question of the court said there was a “trustee” for said estate. It appearing from such admissions that there was no legal entity in the name by which plaintiff was designated, and, therefore, that there was no cause of action, because a cause of action implies a person in existence qualified to institute process (Fruitt v. Anderson, 12 Ill. App. 421), the court should have granted the motion.

Counsel for the designated plaintiff took the position that defendant had entered into a written lease with the “Estate of W. H. Godair” and was estopped from disputing his landlord’s title. But that was aside from the question raised by the motion. The court then received a written lease in evidence without proof of its execution or a showing that defendant was in possession of the premises involved at the time the' suit was brought, which, in any event, was incumbent upon the party claiming the right to possession in such an action to show in order to sustain a judgment for withholding possession of the premises. (McClucky v. Nelson, 179 Ill. App. 182.) Whether, therefore, we view the case from failure of the court to grant the motion to dismiss, or from the insufficiency of the evidence to sustain a judgment against the defendant the judgment must be reversed. While proof was made that defendant was “still in possession,” it was not shown when defendant entered into possession or whether he was in possession at the time the action was brought.

Reversed.

Gridley and Hatchett, JJ., concur.

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Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an action of forcible entry and detainer in which the “Estate of W. H. Godair” is made the plaintiff, and in which it is contended that defendant withholds the possession of certain property from said “Estate of W. H. Godair.” After defendant was served with summons it entered a special appearance and moved to dismiss the case on the ground that plaintiff was not a natural or artificial person, and, as it lacked legal entity to sue or be sued, the whole action failed. Such motion was well founded. (30 Cyc. p. 27; Western & A. R. Co. v. Dalton Marble Works, 122 Ga. 774, 776; Steamboat Pembinaw v. Wilson, 11 Iowa 479.) The record shows that thereupon the attorney appearing for the “Estate of W. H. Godair” admitted that it was not a natural or artificial person, and in response to a question of the court said there was a “trustee” for said estate. It appearing from such admissions that there was no legal entity in the name by which plaintiff was designated, and, therefore, that there was no cause of action, because a cause of action implies a person in existence qualified to institute process (Fruitt v. Anderson, 12 Ill. App. 421), the court should have granted the motion.

Counsel for the designated plaintiff took the position that defendant had entered into a written lease with the “Estate of W. H. Godair” and was estopped from disputing his landlord’s title. But that was aside from the question raised by the motion. The court then received a written lease in evidence without proof of its execution or a showing that defendant was in possession of the premises involved at the time the' suit was brought, which, in any event, was incumbent upon the party claiming the right to possession in such an action to show in order to sustain a judgment for withholding possession of the premises. (McClucky v. Nelson, 179 Ill. App. 182.) Whether, therefore, we view the case from failure of the court to grant the motion to dismiss, or from the insufficiency of the evidence to sustain a judgment against the defendant the judgment must be reversed. While proof was made that defendant was “still in possession,” it was not shown when defendant entered into possession or whether he was in possession at the time the action was brought.

Reversed.

Gridley and Hatchett, JJ., concur.

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220 Ill. App. 348, 1920 Ill. App. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-godair-v-case-illappct-1920.

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