¶1dissents.
¶2Intervenor was ousted from possession of the premises involved under process directed against Milton Robinson, her husband, from whom she was then, and for several months prior to the institution of plaintiff’s action had been, living separate and apart. She was named as a defendant to plaintiff’s action but no summons was served upon her and no order was entered purporting to affect her rights to the premises under her claim of tenancy independent of her husband. The court found the husband guilty of unlawfully withholding possession of the premises and ordered that plaintiff “have and recover of and from the defendant Milton Robinson possession of the premises described.” This judgment could in no wise affect the the possession of intervenor. Rehm v. Halverson, 197 Ill. 378, 383, cited in the opinion of the court.
¶3Having been ousted from the premises under the writ of restitution directed against her husband, she filed a motion praying that the court enter an order. vacating and setting aside the judgment for possession entered against her husband. No notice of this motion was served upon her husband, the judgment defendant. No notice of appeal from the order denying intervenor’s motion to vacate the judgment was served on the judgment defendant. The defendant in the judgment sought to be vacated was not a party to the proceedings in the trial court to vacate the judgment against him and is not a party to this appeal.
¶4The grounds urged before us for the vacation of the judgment are that Milton Robinson, the judgment defendant, having abandoned the premises on December 25, 1945, several months before the institution of the forcible detainer action, 'was not in possession of the premises at the time the action was commenced and the judgment entered, and that service on him was by delivering a copy of the summons to the plaintiff, in whose home the judgment defendant was then living. These are defenses available only to the judgment defendant, who does not complain. Yarnell v. Brown, 170 Ill. 362, 367.
¶5The writ of restitution issued on the judgment against intervenor’s husband gave the plaintiff no right to interfere with the independent possession, if any, of intervenor. Her ouster was not by virtue of authority under that writ but through the abuse of the writ. Her remedy, if any, is an action against plaintiff and the bailiff of the court and not in the vacation of the judgment to which she is a stranger. Furthermore, the reversal of the judgment is futile because such reversal cannot restore her to possession or affect her rights to possession of the premises. Moreover, intervenor’s claim to be restored to possession rests upon her alleged tenancy, independent of that of her husband. This tenancy was in issue on her motion to vacate the judgment against her husband. The ruling on the motion being adverse to her, the presumption is that the court held against her on all issuable facts. 3 Am. Jur., Appeal and Error, sec. 954. The evidence on the question consisted of the testimony of intervenor and plaintiff. The latter’s testimony sustains the finding. The trial court had the advantage of hearing and observing the witnesses. The finding is not against the manifest weight of the evidence and should not be disturbed or ignored by this court.
¶6The order appealed from should be affirmed.