Wade v. Pritchard

Citations

• 69 Ill. 279

Syllabus

<p>1. Discovery—of property, etc., of estates—waiver of defect in affidavit. Where a party charged with having effects belonging to an estate in his possession, etc., appears and goes to trial in the county court upon the merits, this will be a waiver of any defects in the affidavit by which the proceeding is commenced: Objections to the affidavit should be urged before submitting to the jurisdiction of the court.</p> <p>2. Same—evidence not confined to defendant’s answers. Under a proceeding under section 90 of the chapter of Wills, R. S. 1845, the court is not confined to the examination of the defendant, but either party has the right to introduce any evidence that is pertinent to the issue. The court is not even bound to examine the defendant under oath, but may do so in its discretion.</p> <p>3. Former judgment. Where a party is cited, under section 90 of the Statute of Wills, to reach property in his possession belonging to an estate, denies the fact, and is discharged by the court, it seems that such trial and discharge will be a bar to a recovery in another action in respect to the same property.</p>