delivered the opinion op the ■Court.
The question presented to this court is, had the Circuit Court jurisdiction to hear and determine as to the matters and things set forth and alleged in the bill filed by the American Oak Leather Company and Wm. H. Johnson.
It is insisted that' the decrees entered in the case of Deimel v. Deimel, in favor of the American Oak Leather Company and Julius Schmits against Simon, Rudolph and Joseph Deimel, jointly and severally, and awarding execution against said Deimels, were not merely unwarranted, but so entirely foreign to the jurisdiction of a court of equity, that they may be collaterally attacked, being void.
The judgments and decrees of courts must, if of any effect, be, first, upon or concerning a subject over which the court has jurisdiction; if the judgment be more than a proceeding in rein, that is, if it fasten an obligation upon a person, in other words, be in personam, then the court must have had, Avhen pronouncing such judgment, jurisdiction of the person against Avhom the judgment is.
It is not contended that the court did not have jurisdiction of the subject-matter upon consideration of Avhich these decrees Avere rendered; that subject-matter was an indebtedness of the Deimels, severally and collectively, to the American Oak Leather Company and to Julius Schmits, nor is there any claim that jurisdiction over the persons against whom the decrees Avere entered, was not possessed by the court.
What is insisted is that the rendering of these decrees Avas a proceeding so unauthorized by the chancery act of this State, and so foreign to the general usage and practice of courts of equity, that the decrees are void, and may be disregarded whenever and wherever rights are claimed under them, because, as is claimed, the court in rendering such decrees did not pursue any practice recognized or adopted by courts of equity; but so irregularly, or rather with such total disregard of the forms of equity, Avent on to render these decrees, that they are a mere nullity.
We are thus led to inquire what the forms necessary and essential to the existence of a decree of a court of superior and general jurisdiction are; not what is essential to its validity, but necessary and essential to make a decree that is any judgment at all, an adjudgment not always and everywhere worthless and void.
In the case under consideration, all the forms necessary to bring the Deimels into court for an adjudication and determination as to the indebtedness they were under which had arisen out of their partnership matters, had been complied with; they admittedly were in court for this and other purposes.
' Under these circumstances, had Julius Schmits filed in that cause a petition setting forth that as such copartners they were indebted to him and had asked that a hearing might be had and judgment rendered against them severally for the amount of their indebtedness to him, and that he might have execution therefor, there can be no doubt that the court might have entered the decree it did. The rendering of personal decrees for the payment of money due because of contractual relations, is not so foreign to the jurisdiction and practice of a court of equity that such a decree is void; on the contrary, such decrees have often been held justified by the circumstances which called for them, and upheld by the courts of last resort. Richards v. L. S. & M. S. Ry. Co., 124 Ill. 516; and see Stout v. Cook, 41 Ill. 447.
If, then, the decrees under consideration are void, it is because the parties who obtained them did not, by sufficient pleadings, set forth the grounds upon which they asked for relief.
What were the circumstances under which these decrees Avere rendered, and why, if it be the case, were no formal pleadings filed setting forth the creditors’ claims ?
Simon Deimel had filed in the Circuit Court a bill setting up his partnership Avith his brothers, Rudolph and Joseph, alleging the insolvency of such firm, asking that it be dissolved, a receiver of its assets appointed to convert the same into money to pay the creditors of said firm in equal proportions as soon as said creditors should have filed their respective claims Avith the receiver, and also asking that an. account might be taken of all the partnership transactions and dealings, and that the assets might be distributed ratably among the creditors of said copartnership.
Rudolph and Joseph Deimel thereupon came in and confessed all these allegations, consented to the dissolution of the firm, and the appointment of a receiver to collect and distribute its assets.
Upon this a decree dissolving the partnership was at once entered, a receiver of its assets appointed, and the cause was referred to a master, for the purpose of stating the account between the complainant and the defendants, and of receiving proof of claims; and it was ordered that proof of claims against said firm might be filed on or before May 1, 1890, and that the master be authorized to fix the time, place and mode in which claims should be proven, subject to the orders and directions of the court.
All this was done by the consent and procurement of the Beimels. They thus, voluntarily going into court, invited their creditors to go there and prove their claims, confessing at the same time that as the firm was insolvent, its entire assets belonged to its creditors; and thus waived the necessity for formal written pleadings; if in accordance with the usual custom in such cases the claims were proven and allowed without the formality of written pleadings, such action was had with the consent of the Beimels.
The claims having-been allowed by the master, his report was approved by the court, and a decree rendered thereon; from this decree the Beimels prayed and were allowed, but never perfected, an appeal.
If decrees rendered under similar circumstances have ever been held void when collaterally attacked, the numerous and distinguished counsel who represent the collateral attack here made, have failed to call our attention to it.
The question is, not what the Beimels might have accomplished had they followed up the appeal they prayed, but is the personal decree rendered against them utterly void.
The Beimels themselves invoked the aid of the court to determine the amount of their copartnership indebtedness; having done so, the court had power to determine the mode in which it would proceed, and power to find, not merely the existence of a claim against the estate in its hands, but against the Deimels themselves; indeed, every fact necessary to finding and rendering a personal decree against the Deimels it was compelled to investigate and determine, in order to make an allowance of a claim of a creditor to share in the distribution of the assets of the estate; by no possibility could it adjudicate the claim of creditors against the estate without at the same time determining the facts which established their right to a personal judgment against these copartners. When these claims were allowed the copartnership had, by consent of all the members and decree of the court, ceased to exist; there was then no firm and no firm property; only what had been such.
The test of jurisdiction is, whether the tribunal had power to enter upon the inquiry, not whether its methods Avere regular, its findings right or its conclusions in accordance Avith the law. Van Vleet on Collateral Attack, 82.
A court can not act sua sponte; some party must in some way call upon it to act; but the poiver of a court of superior and general jurisdiction to pronounce judgment, when proceeding according to the course of the common law, does not necessarily depend upon the existence or the filing of Avritten pleadings by the parties.
Pleadings are the mutual altercation of the parties; formerly they Avere usually put in by their counsel ore tenus or viva voee.'
The essential thing to be shown by the judgment record is the bringing or coming of the parties before the court, and the hearing and determination by the court of the mat! ter concerning which it is called upon to act. In determining what this matter is, if it can be gathered from the allegations either directly or inferentially that the relief granted or denied was sought or that the party was entitled thereto, the judgment will be shielded from collateral attack. Van Vleet on Collateral Attack, 79; Young v. Lorain, 11 Ill. 624; Fitzgibbon v. Lake, 29 Ill. 165; Turpin v. Dennis, 28 N. E. Rep. 1065; Allie v. Schmitz, 17 Wise. 169; Ricketts v. Spraker, 77 Inch 371; In re Latta, 43 Kan. 533; Kelly v. The People, 115 Ill. 583; Mathews v. Densmore, 109 U. S. 213; Cornett v. Williams, 20 Wall. (U. S.) 250; Head v. Daniels, 38 Kan. 1; Sannoner v. Jacobson, 47 Ark. 31; Fernald v. Noyes, 30 N. H. 39.
A judgment is never void for defects in a petition which is amendable. Van Vleet an Collateral Attack, 240; Kruse v. Wilson, 79 Ill. 391-394; Booth v. Rees, 26 Ill. 45-49; Dollarhide v. Parks, 92 Mo. 178-188.
Every presumption is in favor of the judgment of a court of superior jurisdiction proceeding within the scope of its general powers. Lawson on Presumptive Evidence, 27; Freeman on Judgments, Sec. 124.
He who collaterally assails such a judgment must show a want of jurisdiction. There was in the present case no evidence showing a complete record of the proceedings had upon the claims of the complainants herein, in the case of Deimel v. Deimel et al. Enough was shown to establish that in the cause of Deimel v. Deimel et al., the Superior Court was called upon to act upon the subject-matter of the decrees in favor of the American Oak Leather Co. and Julius Schmits, therein rendered. If the pleadings of the case of Deimel v. Deimel et al., which were offered in evidence, had appeared to be insufficient to sustain those decrees, in the absence of evidence that the pleadings, etc., offered were all that existed, the presumption would have been that other pleadings warranted the action of the court. If these decrees were set up by way of estoppel, different considerations would apply; but the mere fact of the existence of these decrees is alone in controversy; upon that question, as before stated, every presumption is in favor of the jurisdiction of the Superior Court to do what it did;
The right of Johnson to maintain a creditor’s bill is denied, because it is said he has not exhausted his remedy at law. He did obtain a judgment in a court of superior jurisdiction, have execution issued thereon, and returned no property found. That warranted the filing by him of a creditor’s MIL Such bill being properly filed, thereafter, in the course of the proceedings had thereunder, it appeared that he held as security certain warehouse receipts, the goods called for by which, he could not obtain because the court had enjoined the warehouse keeper from surrendering them; thereupon, to obtain them, he gave such bond as the court required, conditioned that he would account for their value. Such being the case, it is said that he has not exhausted his security and therefore can not maintain his bill; in other words, the court having by its order put it out of his power to use his security, is to say to him, because you have not satisfied your debt with a security which we will not permit you to use, you can not be heard. The permission to take the goods upon giving bond to account for their value, was in no sense giving him an opportunity to avail himself of his security; it was merely constituting him a trustee or a receiver, acting under leave of the court.
If the court, withdrawing all superior claim to the property covered by Gottlieb’s (i. e., Johnson’s,) warehouse receipts, had then permitted him to take the same, it would have been entirely proper for it to have required that he, under its direction, sell the goods and apply the proceeds upon his judgment.
It appears that he did sell a portion of them, and that the proceeds were not enough to satisfy his judgment; but whatever he has thus obtained he holds subject to the conditions of his bond.
The case is not like'that of Preston v. Colby, 117 Ill. 477.
There is another consideration applicable to the dismissal of this bill for want of jurisdiction.
The lack of jurisdiction insisted upon in the present case, is not that the subject-matter of the bill is foreign to the proper work of a court of equity, but that the complainants have not exhausted their remedy at law.
If this be so, it was a matter which could as well have been known to counsel for appellees and by them presented to the court at the outset as now; and such presentation should have at once been made, not by a mere statement thereof in an answer, but the attention of the court should have been distinctly called thereto by a motion or proceeding, in effect, to dismiss the bill for such cause.
For counsel, knowing of what they deem a valid objection to the jurisdiction of the court, to go on to the taking of some 2,500 pages of testimony, might well be held to be a waiver of the objection that the complainants had not exhausted their remedy at law. If not treated as such waiver, we think that the court might well impose upon the party whose duty it Avas to have called such objection to its attention, all costs made subsequent to the time at Avhich the court might have been moved to dismiss the bill for such reason.
The objection that a complainant has a remedy at laAv, has frequently been held, may be waived by a failure to insist upon the same in the answer, or by conduct inconsistent with an insistence upon such objection. Stout v. Cook, 41 Ill. 448; Dodge v. Wright, 48 Ill. 388; Lemley v. Golden Co., 16 Ill. App. 457.
The court, has no knowledge of what is in an ansAver until its attention is called thereto.
If the position of counsel for appellees be correct, some íavo months of the time of the court, as Avell as all the great expense of the taking of this testimony, might have been avoided by an earnest pressing of the objection by them, so far as appears, first called to the attention of the court eighteen months subsequent to the filing of the bill.
As to the form of these decrees, the modern rule is, the terms “ decreed,” “ resolved,” “ ordered,” “ judgment rendered,” etc., are fully equivalent to original technical terms, provided the entry shoAvs an actual giving of judgment and exhibits what is required to be specified with clearness and precision. Black on Judgments, Sec. 115.
In equity it is the right of each to insist that the real parties in interest shall be made parties to the suit, and that those having no interest or title in its subject-matter, be dismissed therefrom.
It is immaterial that the suit of Gottlieb was begun by a bill filed in the name of Johnson, to whom Gottlieb’s note had been assigned. Nor do we think' that Gottlieb was bound to disregard the orders of the court and take his goods from the warehouse, because of a neglect to serve the injunction upon the warehouse keeper.
The court having entertained the opinion that it had no jurisdiction, we do not think that we ought to regard any conclusions it may have arrived at upon the equities of the case, for it is manifest that reaching the determination it did, as to its jurisdiction, it would not, upon any view enter-, tained as to the questions of fraud, etc., have granted relief to the complainants.
The decree of the Circuit Court dismissing the bill of the American Oak Leather Company and Julius Schmits, for want of jurisdiction, is reversed, and the cause remanded with directions to determine the equities of the cause and enter a decree thereon, not inconsistent with this opinion. Reversed and remanded with directions,