Hodgen v. Guttery

Citations

• 58 Ill. 431

Syllabus

<p>1. Chancery—commencement of suit—of notice before Mil fled. The filing of the bill is the commencement of a suit in chancery, and service had therein on process issued, or by publication of notice made, prior thereto, is a nullity.</p> <p>2. In such a case, where it was attempted to obtain service b\\r publication, the defendant being a non-resident, it appearing the affidavit of non-residence was made on the loth day of July, and that, on the same day, an order for publication was entered, and the notice was published for the first time on the 17th of that month, and the file mark on the bill bore date the 19th of the same mouth, it was held, even if the affidavit might have been used after the bill was filed, that still the notice published before the bill was lodged in the office of the clerk and filed by him, could not be regarded as legal and binding—there was not constructive notice, such as required tile defendant to regard it, or that gave the court jurisdiction of his person, and hence he was not bound by the decree.</p> <p>3. Same—time of filing MU'—oral evidence. Nor could it be shown by oral evidence, that the bill was filed at a different date than was indicated by the file mark, endorsed by the clerk.</p> <p>4. Same—mistake in the file mark—hoto corrected. Though if a mistake was really made, the complainant might, within a reasonable time, have applied to the court, on proper notice to the defendant, for leave to the clerk to amend the file mark on the bill. But until such an amendment of the record was made, the date indicated must be held conclusive. The court is not at liberty to correct or obviate its effect by conjecture as to the neglect of the clerk to do his duty, but it must be presumed that he did not so far disregard his duty as to date the filing of the bill at a different time from that when it was deposited with him to be filed.</p> <p>5. Mortgages—right of a junior incumbrancer to redeem, when notserved toithprocess. The owner of cer