Swearengen v. Gulick

Citations

• 67 Ill. 208

Syllabus

<p>1. Jubisdictiois—administrator's sale of land. In a proceeding by an administrator, in 1847, for an order to sell the lands of his intestate to pay debts, the circuit court, on the cross-bill of the widow, in the decree of sale directed her dower to be set off in the premises: Held, that, as the court acquired jurisdiction to order the sale by the petition of the administrator, it could not be ousted of the same by the widow’s cross-bill for dower and the proceedings under it.</p> <p>3. Same—when presumed. It is a rule of uniform application, that, in relation to superior courts, or courts of general jurisdiction, nothing is presumed to be out of their jurisdiction but that which specially appears to be so; but, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged. This rule is limited to collateral proceedings, and when the record of a judgment or decree is relied on collaterally jurisdiction must be presumed in favor of a court of general jurisdiction, although it be not alleged or fail to appear in the record.</p> <p>3. Samis—presumption, how overcome. Where a judgment or decree is silent as to service, and the summons in the case shows a want of, or an insufficient service, the presumption of jurisdiction will be overcome. Such presumption is liable to be rebutted.</p> <p>4. Where the papers and flics were lost in a proceeding by an administrator to sell land to pay debts, and the record showed only a decree of sale, it was held, in a collateral proceeding attacking the sale, that it would be presumed that the circuit court ordering such sale had jurisdiction of the persons of the heirs at law of the intestate.</p> <p>5. Administbatob’s sale—Mrs need not he made formal parties. In an application, under the Revised Statutes of 1845, by an administrator for an order to sell land to pay debts, it -was not essential to the jurisdiction of the court that the heirs of the intestate should