Cook v. Moulton, 64 Ill. App. 419 (1896)

June 1, 1896 · Illinois Appellate Court

64 Ill. App. 419

Benjamin L. Cook et al. v. Don A. Moulton, Trustee, et al.

1. Practice—Reversals with Directions. —When a case is reversed and remanded with directions to enter a decree in accordance with the opinion, this court will take notice upon a second appeal of the same cause that its mandate upon the first appeal has not been obeyed.

2. Chancery Practice — Second Answer—Where Surplusage.— Where a guardian ad litem for minor defendants filed his answer in the usual form, to which a replication was filed, and afterward filed a second answer to which no replication was filed, it was held that the second answer was surplusage.

8. Same—Testimony Where New Parties are Made.—Where a cause is reversed and remanded with directions as to the entry of a decree, no additional evidence is necessary. The fact that new parties, including minors, as heirs and representatives of a deceased party were required to be made defendants, does not require a re-reference to the master for the purpose of taking proofs.

4. Parties—Deceased Defendant—Bights of Heirs, Succeeding.— Where the heirs and representatives of a deceased defendant in equity proceedings are made parties they succeed to the rights of their deceased ancestor, and are bound by the record as it was in the latter’s lifetime, and everything that would have concluded such ancestor concludes them.

5. Judgment—Nominal Defendants in Foreclosure.—It is error to enter a personal judgment against a nominal defendant in a foreclosure proceeding.

Foreclosure Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.

Heard in this court at the March term, 1896.

Reversed arid remanded.

Opinion filed June 1, 1896.

Wm. M. Jones and W. Irving Culver, attorneys for appellants.

J. B. Sturman, attorney for appellees.

Mr. Justice Shepard

delivered the opinion of the Court.

This cause was here once before upon appeal, under the title of Rooney et al. v. Moulton et al., 60 Ill. App. 306. The decree then before us was reversed and the cause remanded for other and further proceedings, in accordance with the opinion then filed and reported as above.

We then held, and the opinion said:

“ The decree not only provides for a foreclosure, but also that the Cooks pay to the bank $7,383.09 with costs, and that the bank have execution therefor. This is assigned as error, and is error.”

The mandate to the Circuit Court that issued from this court required that a decree be entered in accordance with said opinion. That was not done. The decree now before us, as did the one that was reversed, contains a personal decree against the appellant, Benjamin L. Cook, which we then held, and now repeat, was error. The only change in attempted compliance with the mandate, in that regard, was to omit from this decree the clause contained in the former one awarding execution for the amount found due and decreed to be paid.

In addition to what was said in the opinion referred to, we refer also to Cook v. Moulton, 64 Ill. App. 429, where we have commented more at length upon the effect of incorporating a personal judgment into a foreclosure decree. Even though it be not assigned for error upon this appeal that the decree was a personal one against Cook, this court will, unaided, take notice upon a second appeal that its mandate upon the first appeal of the same cause has not been obeyed. Oldershaw v. Knoles, 6 Ill. App. 325; 2 Eneylopedia of Pl. & Pr. 923.

Pending the first appeal Ellen M. Cook, one of the then appellants, died, and Rooney, her administrator, was substituted for her, and after the cause was re-docketed in the Circuit Court her four children and heirs at law, together with said administrator, were there substituted as parties in her place. Two of said children were minors, and a guardian ad litem of them was appointed, who filed the usual answer for them.

It seems that to said answer of the minors, a replication was filed, and that subsequently another like answer was filed for the minors, to which no replication was filed. The adult substituted defendants were defaulted, and the new decree was entered.

Various errors are assigned, which call in question the proceeding to a hearing and decree after the minors were made parties defendant, without re-referring the cause to a master in chancery to take proofs and report; and in entering a decree without evidence as against them, and without having afforded them or their guardian ad litem an opportunity to cross-examine appellees’ witnesses or to offer evidence in their own.behalf; and in entering the decree without a replication having been filed to the said last answer of the minors.

There seems to have been no reason for filing the second answer of the minors. It was identically like the first one, which was in the usual form of such answers. Replication to the first answer having been filed, the issues as to the minors were properly joined, and we think the second answer may well be treated as mere surplusage in the case. As to proceeding to a decree without a re-reference, there was no error. There was not a general reversal and remanding of the cause. JSTo new testimony was necessary in order to comply with the mandate of this court. All that remained for the Circuit Court to do was to revise its decree in accordance with the opinion of this court. The fact that new parties, including the two minors, as heirs and representatives of the deceased Mrs. Cook, were required to be made defendants, did not alter the status of the case. The minor heirs, as well as the others who succeeded to the rights of their deceased ancestor, were bound by the record as it was made in the latter’s lifetime, and everything that would have concluded her concluded them.

With reference to the other errors assigned, we do not regard any of them as well taken, and we refer to what we have said in Cook v. Moulton, 64 Ill. App. 429, concerning the assigned error because of that provision of the decree adjudging parties to be in contempt who should refuse to surrender possession after delivery of a master’s deed.

For the error in decreeing a personal judgment against the appellant, Benjamin L. Cook, the decree is reversed, and the cause remanded for a new decree in conformity with this opinion. Beversed and remanded.