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48 Ill. 116

Humphrey v. Newhall

Illinois Supreme Court

Decided September 15, 1868

Illinois Supreme Court · decided 1868-09-15

Writ oe Error to the Circuit Court of Henry county; the Hon. Ira 0. Wilkinson, Judge, presiding. This was a suit in chancery, brought in the court below, by FTewhall, against Humphrey, Turner, FTandain, Allen and Peterson, to foreclose a mortgage given to secure a note executed to Hewhall, by Humphrey & Turner, for §1,750. Humphrey, being a non-resident, was served by publication; the other defendants were personally served.

Relies on Gardner v. Hall

Decided 1868-09-15

Mr. Chief Justice Breese

¶1delivered the opinion of the Court:

¶2The points made by plaintiffs in error are not tenable, inasmuch as the record shows there was an appearance by them, by attorney, in the Circuit Court, and that was sufficient to cure antecedent irregularities, if there were any.

¶3We are referred, by plaintiffs in error, to two cases in this court, in which it was said, where there were several defendants, and some of them served, an appearance must be limited to those served. That is the case of Gardner v. Hall, 29 Ill. 277.

¶4In this case, one of the defendants was personally served, and the others by publication only, which is equivalent to personal service. An entry of appearance by defendants, therefore, will be taken and understood to include all the defendants, as they have all been served, in contemplation of law.

¶5In the other case cited, Clemson et al. v. The State Bank, 1 Scam. 45, there the recital, “ that the defendants came by their attorney,” was evidently a mistake, which the attorney himself had corrected, by using, in the subsequent pleadings, only the name of the defendant served, which mistake the court would have corrected, on motion, had-not the attorney himself corrected it. This record shows a full appearance by all the defendants, by attorney. There being no error in the record, the decree is affirmed.

¶6Decree affirmed.

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