Lee v. Fox

Citations

• 89 Ill. 226

Syllabus

<p>1. Permanent surveys—notice of filing petition. The statute authorizing the court to appoint, a commission to ascertain and establish lines and corners of land which are lost or are in dispute, requires a notice in writing to be served on the defendant, of the application, and this notice must be regarded as the original process to bring the defendant into court.</p> <p>2. Same—party can not serve notice of application. The notice of the filing of an application for the appointment of a commission to survey lands and establish the corners, etc., being in the nature of process, can not be served on the defendant by. one of the petitioners, and if so served the service is void, and confers no jurisdiction on the court over the defendant.</p> <p>3. Same—want of service of notice not cured by service of scire facias. As the defendant, in such case, is entitled to service of notice before the petition is filed, so as to have an opportunity of answering the same and contesting every step in the case, the service of a scire facias on him after the survey has been made and reported, and before final decree, is not sufficient to give the court jurisdiction to enter an order confirming the report of the commission.</p> <p>4. Same—effect of repeal of the statute. The saving clause in the last section of the act repealing the act of 1869 for establishing lost and disputed corners and lines of land, has no application to a case pending at the time of the repeal, when the defendant has not been brought into court by the service of notice, or when the service is a nullity, as being served by one of the petitioners. In such a case there is no suit pending to be saved from the effect of the repeal.</p>