Ayres v. Lusk, 2 Ill. 536, 1 Scam. 536 (1838)

Dec. 1838 · Illinois Supreme Court

2 Ill. 536, 1 Scam. 536

John Ayres et al., appellants v. Edward Lusk and Mary Lusk, his wife, appellees.

Appeal from Morgan.

It is not necessary in a suit in chancery, that there should be an order of publication, before notice to parties who are not served with process, can be given by advertisement in a public newspaper.

Where a part of the defendants in a chancery suit were non-residents, and affidavit was made of this fact, and filed in the cl elk’s office, and the clerk published a notice for four weeks successively in a public newspaper printed in this State, of the pendency of the suit, and requiring such defendants to appear and answer the bill, or that the same would be taken as confessed against them: Held, that the defendants were duly notified under the statute.

W. A. Minshall and C. Walker, for the appellants.

Wm. Thomas and Wm. Brown, for the appellees.

Lockwood, Justice,

delivered the opinion of the Court:

This was a bill filed in the Morgan Circuit Court, on the chancery side thereof. The only particular error assigned is, that the Circuit Court should not have tried the cause before an order of publication was made against the defendants on whom the process was not served, and who did not appear. The record states that an affidavit was filed, showing satisfactorily that a part of the defendants below were non-residents, and that the clerk published a notice for four weeks successively in a public newspaper printed in this State, of the pendency of the suit, and requiring such defendants to appear and answer the bill, or that the same would be taken as against them, for confessed.

The fifth section of the “ diet prescribing the mode of proceeding in Chancery,” ⁽¹⁾ expressly authorizes the practice pursued in this case.

The decision is consequently affirmed.

Judgment affirmed.

(1) R. L. 119; Gale’s Stat. 140.