Winkelman v. Kiser

27 Ill. 21

• Court: Illinois Supreme Court
• Decided: November 15, 1861
• Status: Published

Opinion

Walker, J.

It is urged that this bill was improperly exhibited in the name of Mathias Kiser for the use of Harlow. Whilst it is true that the person holding the beneficial interest should be made the complainant, we are not prepared to hold, that when the use is declared, that the suit should be dis-. missed, if the bill should be amended by striking out the name of the nominal complainant, and let it proceed in the name of the person having the beneficial interest. To permit an amendment to that extent, at any stage of the proceeding, would produce no injury to any party to the record.

The bill alleges that Nicholas Kiser executed the note and mortgage to Mathias Kiser, and alleges that Harlow claimed to have some interest in the mortgaged premises. Service was only had upon Harlow, but on the bill being taken as confessed, a decree for the payment of the money was rendered against both defendants. There can be no pretense that the decree against the defendant not served or in any way entering his appearance, was authorized. Until he was in court in some appropriate mode it was error to render a decree against him. It was also error to render a decree against Harlow for the payment of the money. If his interest was subsequently acquired with actual or constructive notice, it would be proper to order the premises to be sold, and if his claim was a mortgage or deed of trust, to decree his payment out of any surplus remaining after satisfying complainant’s demand. Or if he had become the owner of the equity of redemption, to order the sale of the property, and if he failed to redeem, the sale would bar his equity of redemption.

The decree of the court below must be reversed, and the cause remanded.

Decree reversed.