Appeal from the Circuit Court of Madison County; the Hon.
MICHAEL KINNEY, Judge, presiding. Judgment affirmed.
Rehearing denied January 22, 1965.
On November 10, 1960, Harold William Kronsbein filed, in the County Court of Madison County, a petition which sought to vacate two judgment orders previously entered in a condemnation proceeding which originated in that court on August 13, 1953. A hearing upon that petition resulted in an order entered August 2, 1963, which found that the petitioner, Harold William Kronsbein, had a vested interest in the condemned premises at the time the petition to condemn was filed; that the court, in the condemnation proceeding, never acquired jurisdiction of his person, and therefore, the judgments as to him were null and void, and said judgments were vacated and set aside. A motion to vacate this order of August 2, 1963, was filed by the trustees and denied on December 26, 1963, and this appeal by the school trustees followed.
The condemnation petition filed on August 13, 1953, alleged that Henry Fehling, at the time of his death, was seized in fee simple of the property sought to be condemned, and averred his death, and the admission of his will to probate in Madison County, Illinois. It was then alleged that Mrs. Minnie Rode and Fred Lueders were trustees of the premises; that they are both deceased, and that W.J. Steele and Ivy Steele are the duly appointed, qualified and acting trustees of the above-described tract of land, and now hold the same for the benefit, during her lifetime, of Freida M. Kronsbein, nee Freida M. Fehling, defendant herein.
The petition then alleged that Harold William Kronsbein has a certain interest in said real estate under said will, which, by its terms, gave and devised the premises involved in this proceeding, after the death of Freida M. Fehling to her issue, and that Harold William Kronsbein is the son and sole issue of Freida M. Kronsbein. The petition then alleged that Harold William Kronsbein, Frederick Lester Fehling, Amos H. Rode, Esther A. Clemons, Henry E. Lueders, Wesley A. Lueders, and Conrad C. Lueders are all grandchildren of Henry Fehling, and that they have some interest in the described premises in the nature of a contingent remainder. The petition made W.J. Steele, Ivy Steele, Freida M. Kronsbein, Harold William Kronsbein, and the other named grandchildren of Henry Fehling, parties defendant.
Upon the filing of the petition for condemnation on August 13, 1953, the attorney for the petitioners filed an affidavit which recited that the defendant, "Harold William Kronsbein formerly lived and resided with his mother at 2406 Nameoki Road, Granite City, Illinois, but has long since moved from there, and on due inquiry, cannot be found, and his present place of residence is unknown, and that upon diligent inquiry, his place of residence cannot be ascertained." Upon this affidavit a publication notice was published in the Granite City Press Record on August 17, 20, 27, and 31, 1953. A summons was issued out of the office of the County Clerk of Madison County directed to the defendants. As to service on appellee, the Sheriff's return, dated August 18, 1953, is as follows: "I have duly served the said summons on the defendant Harold William Kronsbein, on the 17th day of August, 1953, by leaving a copy of said summons on said date at his usual place of abode with Freida M. Kronsbein, a person of the family of said Harold William Kronsbein, of the age of ten years or upwards, and by informing such person with whom said summons was left of the contents thereof, and by also sending a copy of said summons on the 18th day of August, 1953, in a sealed envelope, with postage fully prepaid, addressed to said defendant, Harold William Kronsbein, 2406 Nameoki Road, Granite City, Illinois, at his usual place of abode. As such Sheriff, I hereby certify that I did, on the 18th day of August 1953, send a copy of said summons in a sealed envelope with postage fully prepaid, addressed to said defendant, Harold William Kronsbein, at his usual place of abode, as stated hereinabove in my return."
On September 23, 1953, J.C. Steele, as attorney for W.J. Steele, Ivy Steele, trustees, Freida M. Kronsbein and Harold William Kronsbein, filed an instrument designated as an answer in said condemnation proceeding. This answer, although improper in this proceeding (Department of Public Works & Buildings v. Lewis, 344 Ill. 253, 255, 176 NE 345), admitted most of the allegations of the petition, and concluded by averring that as trustees under the will of Henry Fehling, these defendants have no right to enter into any agreement for the sale of the premises sought to be condemned.
On November 2, 1953, upon this record an order was entered in this proceeding, which found, among other things, that the court had jurisdiction of all the parties and subject matter of the proceeding; that the described property was not in excess of what was actually needed for school purposes; that the petitioners have complied with all applicable provisions of the statute, and have made the required preliminary proof entitling petitioners to a judgment for the condemnation of the described tract of land. This order directed that the matter of ascertaining the amount of just compensation to be paid the owners be submitted to a jury.
The following day the jury found the premises sought to be condemned contained 35.16 acres, and fixed the amount of compensation to be paid the owners at $58,893. On November 23, 1953, judgment was entered on this verdict, which directed, among other things, that within thirty days from the date of the order, petitioners should pay this amount to the County Treasurer of Madison County for the benefit of the owners of the tract, W.J. Steele and Ivy Steele, trustees under the last will and testament of the late Henry Fehling; that upon such payment, the petitioners should have the right to enter upon the described premises. On December 23, 1953, upon the petition of the said W.J. Steele and Ivy Steele, who represented themselves to be the trustees under the last will and testament of Henry Fehling, deceased, the court entered an order directing the County Treasurer to pay said sum of $58,893 to them as trustees, and thereafter they received this amount and receipted the County Treasurer therefor.
With the record in this condition the defendant, Harold William Kronsbein, filed, on November 10, 1960, his verified motion to vacate the judgment entered on November 23, 1953. This motion made a certified copy of the last will of Henry Fehling a part thereof, and averred that he was the owner of the condemned premises which were held in trust for his mother during her lifetime. He alleged that no service had been had upon him in the condemnation proceeding, either personal or by publication, and that the attorney who filed an answer for him, had no authority to do so, and concluded that the court had no jurisdiction over his person.
To this motion counsel for appellants filed his affidavit denying the several allegations of the motion, and specifically denying that Harold William Kronsbein was not duly represented in said proceeding by Joseph C. Steele, attorney, and denying also that he was not duly served with notice of the pendency of this proceeding by publication according to the statutes of this state then in effect.
Upon the hearing in the trial court, Harold William Kronsbein testified that he was born on September 19, 1917; that he is a grandson of Henry Fehling, deceased, and the son and only child and issue of Freida Fehling Kronsbein; that his father, John Kronsbein, died in October, 1951, and his mother, Freida Fehling Kronsbein, is living and resides at 2412 Madison Avenue, Granite City; that at the time of his father's death, he was married and living in St. Louis, Missouri; that he was subsequently divorced, and in the fall of 1952, he went to Chicago, Illinois, where he was employed in a restaurant and remained there until the summer of 1957, when he went to Los Angeles, and from there came to Granite City in October, 1957; that he never resided at 2406 Nameoki Road, Granite City, Illinois, and he had no knowledge that his mother ever lived there, and he never, at any time prior to the fall of 1957, knew or was advised of the condemnation proceeding; that he knew J.C. Steele, whom he identified as an attorney present at the hearing of his motion; that he did not employ or authorize him to represent him in any legal matters, and had not authorized him to file any answer in the condemnation proceeding for or on his behalf, and never authorized his mother to represent him in any legal matters. He further testified that on October 13, 1960, he discussed the condemnation proceeding with his attorney and then learned, for the first time, that a pleading had been filed on his behalf.
The only other witness who testified upon the hearing of the motion to vacate was Joseph C. Steele. He testified that he lived in Granite City, and had practiced law for many years, knew Harold W. Kronsbein, and had been acquainted with him prior to August, 1953; that on September 21, 1953, he prepared and filed an answer in this cause on behalf of his brother, W.J. Steele and Ivy Steele, trustees under the will of Henry Fehling, deceased, and on behalf of Freida Kronsbein and Harold W. Kronsbein; that Harold W. Kronsbein did not employ him to do so, or employ him to represent him in this proceeding; that he had not seen Harold W. Kronsbein since the fall of 1951, and knew he had left the area at that time. This witness further testified that he knew the affidavits of Mr. Faulkner, the attorney for petitioner in this proceeding, were on file "claiming they hadn't gotten service, and his mother asked me to file this (answer) on behalf of Harold, and that is why I did so."
Counsel for appellant insists that the legal title to the condemned property was, by virtue of the provisions of the will of Henry Fehling, vested in W.J. Steele and Ivy Steele, trustees; that they were made parties and the court acquired jurisdiction over their persons and they represented all the heirs of Henry Fehling mentioned in his will; that Harold William Kronsbein had only a contingent interest in the premises involved and was, therefore, not an indispensable party to the proceeding. It is also insisted that the court acquired ...