Opinion
Gen. No. 38,583.
Opinion filed March 2, 1936.
1. APPEAL AND ERROR — when appeal from interlocutory order must be dismissed. Appeal from interlocutory order appointing a receiver in a foreclosure proceeding, docketed as an ordinary appeal and wherein the statute and rule of court as to time for filing briefs and abstracts were disregarded, must be dismissed (Ill. State Bar Stats. 1935, ch. 110, ¶ 206; Appellate Court Rule 21).
2. EVIDENCE — when foreign statute authorizing notaries to administer oaths judicially noticed. In view of statute requiring that courts judicially notice the statutes of other States, Appellate Court must take notice that laws of California authorize notary public to administer oaths (Ill. State Bar Stats. 1935, ch. 51, ¶¶ 57, 58; Cal. Political Code, 1931, Vol. 1, § 794).
3. PLEADING — when verification of pleading before foreign notary public sufficient. Verification of complaint in another State, sworn to before a notary public of that State whose seal is attached, is sufficient, in view of statute requiring courts of Illinois to take judicial notice of the laws of other States, where the laws of the particular State authorize notaries public to administer oaths (Ill. State Bar Stats. 1935, ch. 51, ¶¶ 57, 58; Cal. Political Code, 1931, Vol. 1, § 794).
4. FORECLOSURE OF MORTGAGES — when appointment of receiver within discretion of court. Appointment of receiver in foreclosure proceeding held within discretion of trial court upon a showing that the premises had been sold for taxes and that taxes had not been paid for many years, and that the property had scant value.
Appeal by defendants from interlocutory order of the Superior Court of Cook county; the Hon. FRANCIS B. ALLEGRETTI, Judge, presiding. Heard in the first division of this court for the first district at the December term, 1935. Appeal dismissed. Opinion filed March 2, 1936.
HAROLD O. MULKS, of Chicago, for appellants.
JOHN A. BLOOMINGSTON and HAROLD RIVKIN, both of Chicago, for appellee.
This is an appeal from an order appointing a receiver in a foreclosure proceeding. The order is interlocutory and the appeal should have followed the practice prescribed for appeals from interlocutory orders (Practice Act, ch. 110, ¶ 206, Ill. State Bar Stats. 1935) and Rule 21 of this court, which requires that abstracts and briefs of the appellant shall be filed within seven days after filing the record in this court, and the appellee's brief within the next five days. The case was not docketed in this court as an interlocutory appeal but proceeded as an ordinary appeal; extensions of time were asked for to file a complete record and abstracts and briefs, far beyond the time contemplated by the statute and our rules; the receiver was appointed September 5, 1935, a short record was filed October 5, 1935, the complete record was filed November 6th, appellant's brief filed November 18th, and appellees' brief December 3rd. This was in violation of provisions controlling appeals from interlocutory orders, and for this reason the appeal will be dismissed.
However, we have considered this appeal upon its merits. The complaint was in the ordinary form, seeking a foreclosure of a trust deed and asking for the appointment of a receiver; subsequently, in August, 1935, the attorney for plaintiff presented a petition representing that there were instalments of principal and interest due on the indebtedness to the amount of over $55,000; that the taxes for the year 1928 had not been paid and that the premises had been sold for the nonpayment of the taxes for that year; that the premises had also been forfeited for nonpayment of the general property taxes for the years 1929, 1930 and 1931; that the taxes for 1932, 1933 and 1934 have not been paid; that the premises were in the village of Justice Park, Illinois, about 10 or 15 miles from the Chicago city limits, improved with a two-story building the first floor of which is used as a tavern; that the building is about 25 years old; that the fair market value of the premises does not exceed $25,000. Defendants filed an answer and reference was had to a master in chancery who reported, recommending the appointment of a receiver; the chancellor overruled exceptions to the report and appointed a receiver of the premises.
Defendants make a number of points in their brief but the argument does not follow the points as made. Objection seems to be made to the verification of the complaint, which was sworn to in the State of California before a notary public, whose seal is attached, and counsel cite Pfeil v. Loeb, 255 Ill. App. 484, and Blanke v. Hammel, 256 Ill. App. 251, where similar certificates were held insufficient as not showing any authority in the notary to administer oaths. Apparently the statute relating to Evidence was not called to the attention of this court in those cases and was not in the present case. But we find that chap. 51, pars. 57 and 58, provide that we shall take judicial notice of the laws enacted by any State or territory of the United States, and the California law (Political Code of California, 1931, vol. 1, sec. 794) authorizes a notary public to administer oaths.
It is said that the appointment of a receiver upon a mere petition was erroneous, but the complaint as well as the petition asked for the appointment of a receiver. Upon the showing made the court did not abuse its discretion in appointing a receiver. The fact that the premises had been sold for taxes and that the taxes had not been paid for many years, together with the showing of the scant value of the property, was sufficient to justify the appointment.
For the reasons first above stated, namely, that this was an interlocutory appeal, improperly docketed in this court as an appeal from a final order and so treated in the filing of the record, the abstract and briefs, the appeal is ordered dismissed.
Appeal dismissed.
MATCHETT and O'CONNOR, JJ., concur.