Howard v. McChesney
Howard v. McChesney
Opinion of the Court
This is an appeal by the defendant McChesney from an order denying his motion to set aside a decree' of foreclosure entered against him by default. His motion is not based upon section 473 of the Code of Civil Procedure; he does not ask to be allowed to answer to the merits; it was not made until more than a year after the rendition of the judgment.. It rests entirely upon the theory that the judgment is absolutely void, and could, therefore, be set aside at any time on motion.
The order must be affirmed. The judgment is not void on its face. It contains a recital of due service, and there is nothing in the record inconsistent with such recital. .The previous direct statement in the affidavit that summons was published each week for two months between two named dates is not overcome and rendered valueless by the subsequent statement under a videlicit. The most that can be said about the affidavit is that it is ambiguous. That which follows a videlicit does not destroy that which precedes it; the general rule rather is that if repugnant to the preceding matter it will be rejected. (Brown v. Berry, 47 Ill. 177; 2 Abbott’s Law Dictionary, 447, 635.) Moreover, the court clearly had the right to allow in evidence the second affidavit, which cleared away any possible doubt which there might be about the meaning of the first. (See Herman v. Santee, ante, p. 519, decided August 13th by Department One of this court, and cases there cited.)
The order appealed from is affirmed.
De Haven, J., and Fitzgerald, J., concurred.
Reference
- Full Case Name
- BRYANT HOWARD v. J. H. McCHESNEY
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- Vacation of Judgment—Service by Publication—Recital.—A judgment by default, in an action where the service of the summons was by publication, is not void on its face, where it contains a recital of due service, if there is nothing in the record inconsistent with, such recital; and a motion to vacate the judgment cannot be made after the time limited by section 473 of the Code of Civil Procedure. Id.—Affidavit of Publication—Videlicit—Omission of Date.—A direct statement in the affidavit of publication that summons was published each week for two months between two named dates is not overcome and rendered valueless by a subsequent statement under a videlicit in which one regular day for the issuance of the paper i¡} omitted from the enumeration. Id.—Construction of Videlicit.—That which follows a videlicit does not destroy that which precedes it; and, as a general rule, if it is repugnant to the preceding matter, it will be rejected. Id.—Amendment of Affidavit of Publication.—Upon a motion to set aside a judgment by default for a defect in the affidavit of service by publication the court has the right to allow in evidence a second affidavit to clear away any possible doubt which there might be about the meaning of the first, and to show that the service by publication was sufficient in fact.