Fisher v. Stiefel

62 Ill. App. 580, 1895 Ill. App. LEXIS 479

• Court: Appellate Court of Illinois
• Decided: February 11, 1896
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

It is insisted by appellant that Arnold W. Eschenburg, named in the trust deed as trustee, should have been made a party defendant to the foreclosure suit. The bill of complaint contains this allegation: “ That the said trust deed contained the following provision: ‘And in case of the death, absence or removal from said Cook County, refusal or inability to act of the said party of the second part, then Otto C. Butz, of the said city of Chicago, shall be and he is hereby appointed and made successor in trust to the said party of the second part under this deed, for the uses and purposes hereinafter expressed, with the same power and authority as the said trustee.’ ”

The bill also alleges that Arnold W. Eschenburg has removed from and resides outside of the State of Illinois.

The decree is upon the bill of complaint taken as confessed against (certain defendants) and the answers of Wilhelmina Eischer (and others), and upon complainants’ replications to said answers; the master’s report, and upon proofs heard in open court; and the decree sets forth that the court finds that the material allegations of the bill are true.

There was, therefore, no necessity for making Eschenburg a party. Butz, who has succeeded him, was made a party.

The recitals in the decree are a sufficient preservation of the facts upon which the decree is based. In the absence of a certificate of evidence, it will be presumed that the findings were warranted by proofs heard by the court. In the absence of a certificate preserving all the evidence heard by the court, it must be presumed that there was sufficient evidence to warrant and sustain the findings. Secrist et al. v. Petty, 109 Ill. 188-199; Morgan et al. v. Corlies, 81 Ill. 72; Walker v. Abt, 83 Ill. 226; Groenen v. Coffeen, 109 Ill. 325-326; Brown et al. v. Miner et al., 128 Ill. 148; Mauck v. Mauck, 54 Ill. 281; Frink v. Neal, 37 Ill. App. 621.

Wilhelmina Fischer in her petition to set aside the decree, avers that she did not sign or acknowledge the trust deed.

The bill of complaint charges that she, with August Fischer, her husband, did execute and deliver said trust deed, and that the same was duly acknowledged and recorded. The trust deed shown in the record appears to have been duly acknowledged by Wilhelmina Fischer on the 19th day of March, A. D. 1887, before Otto Heper, a notary public, whose certificate of such acknowledgment, together with his notarial seal, are placed upon said trust deed.

There is no pretense of fraud or collusion upon the part of said notary. Under these circumstances the uncorroborated oath of Wilhelmina Fischer could not have prevailed against such certificate had she seen fit to appear before the master, as she had ample opportunity, and testify to what she avers in her petition. Heacock v. Lubuke, 107 Ill. 396; Berdel v. Egan et al., 125 Ill. 298.

The decree of the Superior Court is affirmed.

Shepard, J., dissents.