Botsford v. O'Conner

Citations

• 57 Ill. 72

Syllabus

<p>1. Descents—posthumous heir. The true construction of our Statute of Descents, is, that a posthumous child inherits of an intestate father precisely as do his children born in his life time. On the death of a father, the title to his real estate vests in the posthumous child, although in ventre sa mere, precisely as though such child had been previously born.</p> <p>2. Same—party to suit to divest title. Such a child can not be divested of its title to lands thus inherited, by a proceeding in a court, unless made a party; nor will the form of action, whether in chancery, at law or under the statute, make the slightest difference. A person must have an opportunity of being heard before a court can deprive him of his rights, and this rule applies equally to superior and inferior jurisdictions. Such a person, not having been made a party to the bill, his rights are not cut off by the decree, the sale or the administrator’s deed, and he can recover from those claiming his title.</p> <p>3. Summons—service—return. The sheriff indorsed on a summons in chancery this return: “Served this writ on the within named Mary O’Conner and Charles It. O’Conner, the others not found in my county, the 36th day of August, 1858Held, the return of service insufficient to confer jurisdiction of the persons of the defendants.</p> <p>4. Same—return—what it must show. The return of service must show it was served by copy, in chancery, or by reading, a(t law; it must show the time, the manner and upon whom served, and for the want of these particulars the court will fail to acquire jurisdiction. There must be a legal service, and it must appear from the return that it is such service as gives the court jurisdiction over the person of the defendant.</p> <p>5. Service—;finding of the court in decree. When the court, by the decree, finds there was service, that, like any other finding of the court, can never be contradicted in a collateral proceeding, by parol or other evidence, outside of the