Kennedy v. Merriam, 70 Ill. 228 (1873)

Sept. 1873 · Illinois Supreme Court

70 Ill. 228

Mary Louisa Kennedy v. John W. Merriam et al.

1. Seevxce—return showing service on one of different name. The sheriff made a return upon a summons in chancery, against May Louisa Ismon, that he had served the same upon Mary Louisa Ismon: ■ Held, that, in the absence of proof to the contrary, this court must hold the names to indicate two distinct persons, and, consequently, that there was no service on May Louisa Ismon.

2. Chancery-—record must show evidence to justify the finding. Where the court, in its decree, refers to the evidence upon which the facts are found, and it fails to support the finding, the decree will be reversed.

3. Thus, on a creditors’ bill to set aside certain conveyances as in fraud of creditors, where the decree recited that the cause was heard upon the bill, answer, replication and exhibits, “ and also the proofs taken in the cause, to-wit,” naming the record in a partition suit, certain deeds, which were described, a recorded town plat, and then proceeded, “ and the court being fully advised, etc., and finding, from the proofs in the case, that the said deeds of conveyance from,” etc., to, etc., were made to hinder and delay, etc: Reid, that, as the decree professed to state the proofs, and there being no proof shown of the fraud, or that there were any creditors at the time of the execution of the deeds, the decree could not be sustained.

4. In chancery causes, it is not to be presumed that any evidence was given in the cause, in the court below, except what appears in the record; and as to infants, strict proof is required, and the record must furnish evidence to sustain a decree against them, whether the guardian answers or not.

Wbit of Ebboe to the Circuit Court of DeKalb county; the Hon. Isaac G. Wilson, Judge, presiding.

This was a creditors’ bill, filed January 22,1861, by Albert L. Merriam, against George.L. Ismon, May Louisa Ismon, Amos Shepherd and James Meader. The opinion states the frame and object of the bill, and the proceedings had thereon.

Mr. W. S. Coy, and Mr. O. T. Eeeves, for the plaintiff1 in error.

Mr. E. L. Divine, for the defendants in error.

Mr. Justice Sheldon

delivered the opinion of the Court:

On the 22d day of January, 1861, Albert L. Merriam filed a bill in chancery, against George L. Ismon, May Louisa Ismon, Amos Shepherd and James Meader, to have declared void, as fraudulent, and as having been made to defraud creditors, two certain deeds of two separate parcels of land, from the said George L. Ismon, one to said Shepherd and the other to said Header, and to have said lands subjected to the payment of a certain judgment which had been recovered by the complainant against George L. Ismon.

The bill alleged that the title to the tract conveyed to Header had become vested in Hay Louisa Ismon, by devise, and she was made a party as an infant defendant. The summons was issued against Hay Louisa Ismon, and returned as served upon Hay Louisa Ismon. A guardian ad litem was appointed by the court for May Louisa Ismon. The guardian ad litem answered for Mary Louisa Ismon, and the decree rendered in the case is against Mary Louisa Ismon, setting aside the deed to Meader, as fraudulent, and made to defraud creditors, and ordering the sale of the land conveyed by it, for the satisfaction of the complainant’s judgment.

Mary Louisa Ismon having since intermarried'with Burt Kennedy, brings this writ of error to reverse the decree.

Kothing is to be presumed against an infant; everything must be proven. We can not say, in the absence of proof, that May and Hary are one and the same person, or that the summons was served on Mary under the wrong name of May. Hay and Mary are two distinct names, and we must hold them to signify two different persons, in the absence of proof to the contrary, and there is none such in the record. Mary Louisa Ismon, as we must hold, was not served with process, and the guardian ad litem had no authority to make answer for her. See McNulty v. Mott, 3 Cal. 235, and Butterfield v. Johnson, 46 Ill. 68.

There is a distinction between the present ease and that of Pond v Ennis, 69 Ill. 341, in this: there, the question arose collaterally, and distinct proof was made of the person who was actually served, and that the real party was served under the wrong name; whereas, here, there is no proof in the record that Mary was the person served, and nothing to show what person was served, besides the return of service upon the summons.

It is insisted, further, that the record does not contain evidence which is sufficient to sustain the decree. The record contains no evidence except what appears from the recitals of the decree. It recites that the cause came on to be heard upon the bill of complaint, taken as confessed by the defendants, Header and Shepherd; the answers, replication and exhibits, and also the proofs taken in the cause, to-wit, naming the record and proceedings in a certain partition suit —certain deeds, describing them—a certain recorded town plat—the judgment described in the bill—and then proceeds, “ and the court being fully advised in the premises, and finding, from the proofs in the case, that the said deeds of conveyance from said defendant, George L. Ismon, and wife, to the said James Header and Amos Shepherd, were made and contrived for the purpose and with the intent to hinder, delay and defraud the complainant, a creditor of said George L. Ismon, in the collection of his debt and demand against said Ismon, and that said deeds were made without any consideration whatever. It is, therefore, ordered, adjudged and decreed,” etc.

The exhibits were only copies of the deeds. As we understand the decree, it professes to state the proofs upon which the finding was had. When the court, in the decree, refers to the evidence upon which the facts are found, and it fails to support the finding, this court will review the finding and reverse the decree. Preston v. Hodgen, 50 Ill. 56.

In chancery causes, it is not to be presumed that any evidence was given in the cause, in the court below, except what appears in the record; and as to infants, strict proof is required, and the record must furnish evidence to sustain a decree against them, whether the guardian answers or not. Reddick v. President, etc., State Bank Ills. 27 Ill. 146. The proofs recited do not support the findings of the decree.

They do not show the conveyances to have been fraudulent, nor that there were creditors at the time they were made, the deed to Header appearing, from its date, to have been executed January 1, 1858, and the judgment rendered October 4, 1859.

The decree, as to Mary Louisa Ismon, is reversed, and the cause remanded for further proceedings.

Decree reversed in part.