Griswold v. Heinroth

154 Ill. App. 124, 1910 Ill. App. LEXIS 629

• Court: Appellate Court of Illinois
• Decided: March 11, 1910
• Docket: Gen. No. 5089
• Status: Published

Opinion

Mr. Justice Thompson

delivered the opinion of the court.

Appellant assigns for error that the court erred in considering the affidavits filed by the appellees, on the hearing of the motion made by appellees to strike the bill of review from the files, and in refusing to strike the affidavits filed by appellees from the files.

If the bill of review is a bill to review the decree in the foreclosure suit for error in law apparent upon the face of the decree, then we are of the opinion it was not proper for the defendants to the bill, appellees in this court, to file affidavits for the reason such a bill may be filed without leave of the court and issues thereon should be made as in other chancery proceedings. On the other hand if the bill was based on matters outside the record, it was not error for appellees to file affidavits and for the court to consider them. Application for leave to file a bill of review upon matters of fact should be made by a petition supported by affidavits (Schaefer v. Wunderle, 154 Ill. 577) setting forth the new matter with particularity, showing that it has come to the knowledge of the petitioner since the time when it could have°been used in the original suit and that the petitioner and his attorney had not been negligent. It has been held that counter affidavits are admissible “not for the purpose of investigat-■ ing or absolutely deciding the truth of the statements in the petition; but to present in more exact shape some of the circumstances growing ont of the original proceedings which may assist the court in the prelimi-, nary discussion.” 3 Ency. of Pl. and Pr. 588. In this case the bill did not set out the original bill, but only what was alleged to be an abstract of it; neither did it set up the answer of those with whom it was alleged appellant answered jointly. It was proper and necessary that a copy of the bill and the answer, if there were such, should be set forth in the bill, and it was necessary that the court should be fully informed as to the original pleadings.

It is also insisted by appellant that the bill was to review a decree for error apparent on the record. It is necessary in a bill of review to state the former bill and the proceedings thereon. This bill only pretends to set out an abstract of the original bill obtained from a third party and is not sworn to. In the abstract there is a statement concerning the making of the Underwood trust deed securing the $15,000 note made by the Dock Company payable to its own order on which $2,875.55 had been paid when the trust deed was » made, and that- subsequent to the making of said mortgage and said trust deed certain rights and interests in and to the lands or part of them described in said mortgage and said trust deed were created or .transferred or attempted to be transferred as follows; then follows a description of subsequent conveyances, trust deeds, etc., and also the statement “on or about June 11, 1900, said Winthrop Harbor & Dock Company executed three deeds each purporting to convey certain premises unto Security Title & Trust Company to secure the payment of certain notes, but that if said deeds, levy and sale, or any of them, were made and executed, the interests and rights created thereby are all, each and every subsequent, subject and subordinate to the liens created by said mortgage and said trust deed sought to be foreclosed herein.” The bill of review in the abstract of the original bill omits entirely the following allegation that is in. the sworn copy of the original bill filed by the appellees: “And your oratrix avers on information and belief that all the notes secured by said trust deed have matured, and except the said note of William J. Knight have been paid.” Appellant in her bill alleges she was the owner of the $15,000 note described in the Underwood trust deed when the foreclosure suit was begun. The owner of that note was made a party to the foreclosure suit by the description of “the unknown owner or holder,” etc. The bill of foreclosure alleges that note was paid off. Appellant was a party defendant to the original bill and personally served with summons, and personally and as the unknown owner or holder, etc., of the $15,000 note was defaulted and thereby admitted the allegation of the bill that the note was paid off. Mason v. Patterson, 74 Ill. 191; Board of Supervisors v. Smith, 95 Ill. 328. There is no allegation in the bill of foreclosure concerning the $7,500, the $10,000 and the $12,000 notes except the broad allegation that “subsequent to the execution, acknowledgment and recording of said mortgage deed and said trust deed certain rights and interests in and to the lands or a part of them described in said mortgage deed and said trust deed were created and transferred or attempted to be transferred as follows. * * * On or about June 11,1900, said Winthrop Harbor & Dock Company executed three deeds each purporting to convey certain premises unto Security Title & Trust Company in trust to secure the payment of certain notes, but your oratrix charges that if said deed, levy and sale or any of them were made and executed the interest and rights created thereby are all, each and every, subsequent, subject and subordinate to the liens created by said mortgage deed and said trust deed sought to be foreclosed herein.” The foreclosure bill makes the owners of the notes for $7,500, $10,000 and $12,000 parties by the names of “the unknown owner or holder,” etc., and each of them were defaulted.

By the bill of review appellant seeks to assert the fact not' disclosed by the. record of the original suit that she was the owner of each of these notes and they were secured by deeds executed June 11, 1900. The original bill does not allege that these notes or any of them were secured by a trust deed, except in the description of the party owning the note, who is described as. “the unknown owner or holder or owners or holders of one (1) principal note for $7,500 payable five years after its date with interest at six (6) per cent per annum and ten (10) interest notes for two hundred and twenty-five (225) dollars each and payable respectively on the eleventh day of December and June in each year; all of said eleven notes dated June 11, 1900, made by the Winthrop Harbor & Dock Company payable to the order of itself and by it endorsed and delivered and bearing interest after due at seven (7) per cent per annum, and payable at Chicago, Illinois, and secured by deed of trust dated June 11, 1900, and recorded July 18, 1900, in the Recorder’s office of Lake county, Illinois, as document number 78,755, conveying all of fractional section two (2) in township forty-six (46) north, range twelve (12) east of the 3d principal meridian.” The other two notes are described with the same particularity in describing their owners, the $10,000 note being secured by trust deed on the north half of fractional eleven, and the $12,000 note being secured on the south half of fractional two. These three notes are secured by trust deeds to the same lands that are described in the mortgage deed dated December 28, 1892, recorded December 29, 1892, so that it is apparent that the lien of the trust deed is subsequent and subject to the lien of the original Knight mortgage.

The three notes of $7,500, $10,000 and $12,000 held by appellant were secured on the same lands as were included in the original Knight mortgage but by trust deeds eight years subsequent to the Knight mortgage. The $15,000 note owned by appellant was secured by a ■trust deed on all the Knight lands and the subdivided lands, but it being alleged to have been paid, which allegation the default admits, the bill of review so far as appellant is concerned is a bill based on her new allegations that she was the owner of the notes and that the $15,000 note has not been paid. If the other notes are not paid they were secured by trust deeds covering the same property as the prior Knight mortgage. There is no apparent error of law in the record that concerns appellant. The bill is based upon matters outside the record and upon the gross negligence of appellant and her attorney. The bill having been filed without leave of court was properly dismissed as to her. None of the other parties have seen fit to question the right of appellant to bring the cause here while it is still pending in the court below as to one complainant, and we do not consider it necessary to discuss our jurisdiction when it is not assailed.

Affirmed.