{ "id": 5113986, "name": "Metzger v. Huntington", "name_abbreviation": "Metzger v. Huntington", "decision_date": "1893-12-21", "docket_number": "", "first_page": "377", "last_page": "379", "citations": [ { "type": "official", "cite": "51 Ill. App. 377" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "22 Fed. Rep. 282", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6716945 ], "opinion_index": -1, "case_paths": [ "/f/22/0282-01" ] }, { "cite": "120 Ill. 184", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5384582 ], "opinion_index": -1, "case_paths": [ "/ill/120/0184-01" ] }, { "cite": "62 Ill. 66", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606066 ], "opinion_index": -1, "case_paths": [ "/ill/62/0066-01" ] }, { "cite": "42 Ill. 366", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5295179 ], "opinion_index": -1, "case_paths": [ "/ill/42/0366-01" ] }, { "cite": "14 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587029 ], "opinion_index": -1, "case_paths": [ "/ill/14/0280-01" ] }, { "cite": "29 Ill. 162", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2454381 ], "opinion_index": 0, "case_paths": [ "/ill/29/0162-01" ] }, { "cite": "23 Ill. 66", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5805503 ], "opinion_index": 0, "case_paths": [ "/ill/23/0066-01" ] }, { "cite": "120 Ill. 184", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5384582 ], "opinion_index": 0, "case_paths": [ "/ill/120/0184-01" ] }, { "cite": "14 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587029 ], "opinion_index": 0, "case_paths": [ "/ill/14/0280-01" ] } ], "analysis": { "cardinality": 378, "char_count": 6011, "ocr_confidence": 0.499, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1554416879130791 }, "sha256": "30e0657a3c6c4ac282510e4a322ead35d8686fd248cb181edc56457738397365", "simhash": "1:d097033d7867c9f1", "word_count": 1074 }, "last_updated": "2023-07-14T18:36:15.137575+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Metzger v. Huntington." ], "opinions": [ { "text": "Me. Justice Gaby\ndelivebed the opinion of the Coubt.\nThis was an action upon a judgment in Indiana, in favor of the defendant in error against the plaintiff in error, who pleaded in abatement that he was not served with process in this action.\nThe jury found against him upon evidence conflicting, it is true, but which upon one side justified the conclusion that the summons was read in his hearing, though the officer addressed himself to Metzger\u2019s clerk; both the clerk and Metzger being aware that the officer thought that the clerk ivas Metzger. Eo authority is cited or argument made that evidence of such service would falsify the return of service.\nIt is doing no violence to the English language to say that what is read in the hearing of several persons, is read to all of them, even though the reader addresses only one specially.\nThe plaintiff in error asked, and excepted to the refusal, of this instruction:\n\u201c The jury are instructed that if you believe from the evidence that John G. Campbell was a legally appointed deputy sheriff, and was acting in that capacity upon the seventh day of April, 1893, and that upon that day he read the summons introduced in evidence to George Robertson, a bookkeeper in the office of William G. Metzger, and at that time, nor at any other time did he read said writ to William G. Metzger, then your verdict should be for the defendant.\u201d\nThis was rightfully refused even if it meant what it was\" intended to mean; but \u201c at that time, nor at any other time, did he read,\u201d etc., are not words that negative reading \u201c at that time;\u201d probably the writer meant to put \u201c neither \u201d before them. The serious question of law in the case arises upon the verdict and subsequent action of the court.\nThe verdict was: \u201cWe, the jury, find the issues for the plaintiff.\u201d Had the action been for damages, this verdict would have been a nullity, as the same jury should have assessed them. Boggs v. Bindskoff, 23 Ill. 66; Moeller v. Quarrier, 14 Ill. 280.\nThese are cases under former statutes when the traverse of the affidavit in attachment ivas in abatement, but the same rule obtains Avhen the summons is attacked for extrinsic matter in abatement. Green v. Young, 120 Ill. 184.\nStrictly, even on an indictment for a misdemeanor, if the defendant plead in abatement, and it be found against him, that is the end of his defense, and the court proceeds to judgment. Schram v. People, 29 Ill. 162.\nHere the action was not for damages, but for a debt of record. With the existence of that record the jury had no concern. It Avas a matter upon AArhich the court only could pass. 2 Tidd, 741 et seqr., and notes.\nThe jury having done all for Avhich they were competent, it necessarily f olloAved that the court must do the rest. Rust v. Frothingham, Breese, 331.\nThese views dispose of all questions made in the case and the judgment is affirmed.", "type": "majority", "author": "Me. Justice Gaby" } ], "attorneys": [ "L. H. Bisbee and W. E\". Gemmill, attorneys for plaintiff in error.", "Brief for Defendant in Error, Defrees, Brace & Bitter, Attorneys." ], "corrections": "", "head_matter": "Metzger v. Huntington.\n1. Service of Process\u2014Scad toWrong Person, but in Presence of the Right.\u2014Where a summons is read in the hearing of a defendant, though the officer addressed himself to his clerk, both the clerk and he being aware of the officer's mistake, it was held that as what is read in the hearing of several persons, is read to all of them, even though the reader addresses only one specially, the service was sufficient.\n2. Instructions\u2014Should be Accurately Drawn.\u2014On the trial of a plea in abatement, that the defendant, W. M., had not been served with process, the court refused to instruct the jury: \u201cIf you believe from \u25a0the evidence that J. G. C. was a legally apiJOinted deputy sheriff, and was acting in that capacity upon the seventh day of April, 1893, and that upon that day he read the summons introduced in evidence to G. R, a bookkeeper in the office of W. M., and at that time, nor at any other time did he read said writ to W. M., then your verdict should be for the defendant.\u201d It was held, rightfully refused, even if it meant what it was intended to mean; but, \u201c at that time, nor at any other-time, did he read,\u201d etc., are not words that negative reading \u201cat that time;\" probably the writer meant to put \u201cneither\u201d before them.\n3. Verdict\u2014Form of, in Abatement.\u2014In the trial of an issue in abatement, the jury returned the following verdict: \u201cWe, the jury, find the issues for the plaintiff.\u201d It teas held to be proper, as the issue was not for damages.\nMemorandum.\u2014Abatement to the service of process. Error to the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1893, and affirmed..\nOpinion filed December 21, 1893.\nThe statement of facts is contained in the opinion of the court.\nL. H. Bisbee and W. E\". Gemmill, attorneys for plaintiff in error.\nBrief for Defendant in Error, Defrees, Brace & Bitter, Attorneys.\nIt was generally held in England that anything which brought home personal knowledge of the writ to the defendant, constituted a good personal service. Williams v. Pigott, 1 M. and W. 573; Rhoades v. Innes, 7 Bing. 329; Phillips v. Ensell, 2 Dowl. P. C. 684.\nThe jury having found that the defendant was duly served, the next question which arose was as to the kind of judgment which should be entered\u2014the plaintiff demanding judgment quod reouperet, and the defendant insisting that the j udgment should be respondeat ouster.\nThe court assessed the damages and entered judgment for the plaintiff for the amount of the judgment, and for damages in an amount equal to the interest thereon.\nWhere an issue of fact is made by plea in abatement and\" the verdict is for the plaintiff, the judgment to be entered on the verdict is final\u2014quod recuperet. 1 Saunders\u2019 P. and E. 5 (4th Am. Ed.); Stephen\u2019s Pleading, 104; 1 Tidd\u2019s Practice, 640 (4th Am. Ed.); Gould\u2019s Pleading, 277; 1 Chitty\u2019s Pleading, 464.\nThis is the practice in Illinois. Moeller v. Quarrier, 14 Ill. 280; Brown v. Ill. C. M. Ins. Co., 42 Ill. 366; Goggin v. O\u2019Donnell, 62 Ill. 66; Greer v. Young, 120 Ill. 184-191; Rubel v. Beaver Falls Co., 22 Fed. Rep. 282." }, "file_name": "0377-01", "first_page_order": 373, "last_page_order": 375 }