Donlin v. Hettinger

Citations

• 57 Ill. 348

Syllabus

<p>1. Notice in statutory proceedings—must be made to appear. Where a court is called upon to exercise a power specially bestowed upon it by statute, not within its ordinary common law or chancery powers and jurisdiction, the fact the notice prescribed in the statute was given, it being a jurisdictional fact, must appear on the face of the proceedings.</p> <p>2. That fact, however, may be made to appear from a proper recital thereof in the order or decree, which will be sufficient in a collateral proceeding-, if there be nothing in the case to show that the finding of the court was not correct.</p> <p>3. Same—as to proceedings by an administrator to sell land to pay debts. In a proceeding in the circuit court by an administrator, for an order to sell the lauds of his intestate to pay debts, a decree was entered reciting- service of notice, but the recital itself showed the service was defective. That decree was afterwards set aside, the petition amended by substituting- other-lauds, and another decree rendered, without, however, any new adjudication upon the fact of notice, nor did it appear anywhere in the proceedings that any other notice had been given than that recited in the first decree: Held, in a collateral proceeding-, the presumption was, that the second decree was made under the notice referred to in the former decree, which being- defective, the court failed to acquire jurisdiction of the persons of the heirs.</p> <p>4 In a proceeding of this character, unless the mode pointed out by the statute for bringing the parties before the court isjmrsued, there will be such a want of jurisdiction as will vitiate the order of sale.</p>