Shannahan v. Stevens

Citations

• 139 Ill. 428
• 28 N.E. 804

Syllabus

<p>1. Chancery practice—motion for leave to file intervening petition after bill is dismissed. A husband and wife gave a mortgage on real estate of the latter, to secure a debt of the former, which contained a .power of sale. The wife filed her bill to enjoin a sale, on the ground that the debt was paid if the usury paid was deducted. The husband was not made a party. The court, on a stipulation of the wife, dismissed her bill. At the same term the husband appeared and made an oral motion to set aside the order of dismissal, and to allow him to intervene in the case as co-complaiuant. No disposition was made of this motion for several terms, when it was overruled, on the ground it was shown that the wife was not of sound mind when she signed the stipulation to dismiss: Held, that the husband had a right to intervene as a complainant, and that the court erred in denying his motion.</p> <p>2. A person interested in the subject matter of a bill, who is a necessary party, has the right, on his motion, to intervene and become a party to the suit, even after the bill has been dismissed under a stipulation of the complainant, when his motion is made at the same term the suit is dismissed.</p> <p>3. One having the right to be made a party to a bill in chancery, necessarily retains the right to move the court to become such upon the record at any time the case is within the control of the court.</p> <p>4. Same—motion instead of writ of error coram nobis. A motion may be made instead of suing out a writ of error coram nobis, at the same term at which a decree is rendered, to correct errors which at common law could be corrected only upon the return of that writ. During the term at which the decree is rendered the case is within the control of the court.</p> <p>5. Same—motion—continued by operation of law. Where a motion of a person interested, to intervene and become a party to a suit in chancery, is not decided by the court at the term when made, it will be continued, by ope