{ "id": 5097589, "name": "Robert Law v. John B. Grommes and Michael Ullrich", "name_abbreviation": "Law v. Grommes", "decision_date": "1894-11-12", "docket_number": "", "first_page": "312", "last_page": "321", "citations": [ { "type": "official", "cite": "55 Ill. App. 312" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "16 Ill. 299", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2589774 ], "opinion_index": -1, "case_paths": [ "/ill/16/0299-01" ] }, { "cite": "1 Scam. 174", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2478767 ], "opinion_index": -1, "case_paths": [ "/ill/2/0174-01" ] }, { "cite": "1 Scam. 239", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2485472 ], "opinion_index": -1, "case_paths": [ "/ill/2/0239-01" ] }, { "cite": "3 Scam. 515", "category": "reporters:state", "reporter": "Scam.", "opinion_index": -1 }, { "cite": "66 Ill. 157", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2624249 ], "opinion_index": 0, "case_paths": [ "/ill/66/0157-01" ] }, { "cite": "57 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241339 ], "opinion_index": 0, "case_paths": [ "/ill/57/0072-01" ] }, { "cite": "12 S. E. Rep. 638", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "86 Ga. 314", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 216354 ], "opinion_index": 0, "case_paths": [ "/ga/86/0314-01" ] }, { "cite": "46 Ill. App. 82", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5147585 ], "opinion_index": 0, "case_paths": [ "/ill-app/46/0082-01" ] }, { "cite": "87 Ill. 23", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5343354 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/87/0023-01" ] }, { "cite": "79 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2689452 ], "opinion_index": 0, "case_paths": [ "/ill/79/0228-01" ] }, { "cite": "78 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 824024 ], "opinion_index": 0, "case_paths": [ "/ill/78/0339-01" ] }, { "cite": "27 Ill. 496", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5250625 ], "opinion_index": 0, "case_paths": [ "/ill/27/0496-01" ] }, { "cite": "16 Ill. 299", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2589774 ], "opinion_index": 0, "case_paths": [ "/ill/16/0299-01" ] }, { "cite": "16 Ill. 27", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587790 ], "opinion_index": 1, "case_paths": [ "/ill/16/0027-01" ] } ], "analysis": { "cardinality": 737, "char_count": 18741, "ocr_confidence": 0.489, "pagerank": { "raw": 7.618770546896204e-08, "percentile": 0.45054383479500154 }, "sha256": "ef1a2276c315c186de4b910ff866bc50209e4b4e48297bf585694adf19e0af41", "simhash": "1:bd072e28f6c26068", "word_count": 3339 }, "last_updated": "2023-07-14T16:55:31.699098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Robert Law v. John B. Grommes and Michael Ullrich." ], "opinions": [ { "text": "Mr. Justice Shepard\ndelivered the opinion op the Court.\nA judgment by default was rendered in the Circuit Court in an action of debt upon a foreign judgment.\nThe sheriff\u2019s return upon the summons shown in the record was, omitting signature, as follows:\n\u201c Served this writ on the within named Robert Law, by delivering a copy thereof to him this 10th day of April, 1891.\u201d\nThe summons was made returnable to the April term, 1891, of the Circuit Court, and that term beginning on April SOth, the service, if good, was in time for the term to which the writ was returnable.\nThe declaration, however, was not filed until April 11, 1891, which was one day too late to entitle the plaintiff to a default and judgment at the April term, even though the, service by delivering a copy of the writ was a lawful service.\nAt the May term the judgment by default was entered, without the issuance or service of any other writ, so far as is shown by the record, except by the recitals of the judgment itself. The recital of the judgment roll as to service of the summons, is as follows:\n\u201c It appearing to the court that due personal service of summons issued in said cause, has been had on the defendant for at least ten days before the first day of this term.\u201d\nThat every reasonable presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction, and that its findings in its decree or judgment that a defendant has been duly served with summons, will be held to be prim,a facie evidence of that jurisdictional fact, is a well settled rule in this State. Timmerman v. Phelps, 27 Ill. 496; Coursen v. Hixon, 78 Ill. 339; Turner v. Jenkins, 79 Ill. 228; Haworth v. Huling, 87 Ill. 23.\nIn the last two cases cited, one or more terms of court had intervened between the term to which the summons that was defectively served was returnable, and the term at which the judgment was rendered; and it was held that the presumption arose from the recitals in the decree of due service of process upon the defendants, that another summons than the one appearing in the record had been issued, returnable to the next term of court and duly served, but lost from the files or omitted from the record.\nIn the first case cited, Timmerman v. Phelps, the return of service of the summons was signed by a deputy sheriff as such, without using the name of the sheriff, and it being recited in the decree that process had been duly served on the defendant, it was held that it would be presumed that it had been made to appear in some way to the court below that the sheriff was dead, in which event the deputy sheriff had the authority, under the statute, to sign the return in his own name.\nIn the other case, Coursen v. Hixon, it did not appear in what manner process was served upon one Young, a defendant jointly sued with one against whom a scire facias was issued, to make him a party to a judgment against Young, and it was contended by the defendant in the scire facias proceeding, that the record did not show jurisdiction in the court below to enter judgment against Young; but the judgment reciting that due service of process was had upon Young and the record containing nothing to impeach or contradict the-recital, the judgment was held to be regular. Ve state these cases to show the extent to which presumptions in favor of jurisdictional recitals in decrees and judgments exist.\nBut such presumptions are only prima facie, and prevail only where there is nothing in the record to rebut, impeach, or contradict them. See above cases.\nIf the declaration had been filed in time for a default at the April term, there might have been room for a presumption to arise from the fact that no default was taken until at the May term, that another summons was issued returnable to the May term, and was duly served, and had become lost, as was held in Turner v. Jenkins, and Haworth v. Huling, supra.\nBut we think that presumption is fairly rebutted from the fact that because the declaration was not filed in time no default could have been taken at the April term.\nThe only justifiable presumption of fact upon the record, in that regard, is, in our opinion, that the cause was continued to the May term, not to obtain a better service upon another summons, but because the declaration was filed too late to admit of an earlier default.\nThe failure to file the declaration in time was a conclusive reason why default was not and could not have been taken until at the May term, and being conclusive, it rebuts all pre- \u2022 sumption of a fact that rests upon the legal fiction that the continuance was for some purpose of which the record furnishes no evidence.\nMoreover, it appears from the return on the summons that the defendant was found.\nThe authority for the issuance of an alias summons, without an order of court, is found in Section 9, Chapter 110, Revised Statutes, and is as follows:\n\u201c Whenever it shall appear, by the return of the sheriff or coroner, that the defendant is not found, the clerk shall, at the request of the plaintiff, issue another summons or \u25a0 capias, as the case may be, and so on until service is had.\u201d\nExcept, therefore, when the return of \u201c not found \u201d is made, the clerk has no authority to issue an alias summons, unless upon an order of court. Berry v. Krone, 46 Ill. App. 82; Peck v. La Roche, 86 Ga. 314; 12 S. E. Rep. 638.\nThe record is destitute of any order of court directing the issuance of another summons because of a defective service upon the defendant who was found, or for any other reason.\nThere being, then, no authority in the clerk without an order of court to issue an alias summons where it is shown by the return on the original summons that the defendant was found, and no order of court appearing to have been made, and the presumption being that the cause was continued to the May term because the declaration was not filed in time for a default at the April term, we think this completely rebuts the prima fade presumption arising from the recital in the judgment that there was due service of another summons than the one shown in the record.\nWe are, therefore, forced to the conclusion that the only summons that issued and the only service that was had upon the defendant, was the summons upon which the return was made as above set forth.\nThe question then arises, was the service of the summons by delivering a copy to the defendant such a service as gave jurisdiction to the Circuit Court, of the person of the defendant, and to enter judgment against him.\nThe statute, Sec. 4 of the Practice Act, relating to the service of summons generally, and the return thei\u2019eof, merely provides that \u201c it shall be the duty of the sheriff or coroner to serve all process of summons * * * and to make return of such process to the clerk who issued the same, by or on the return day, with an indorsement of his service, the time of serving it, and the amount of his fees.\u201d\nIt does not provide in what manner the service shall be made, whether by reading or the delivery of a copy thereof.\nIn numerous kinds of suits and proceedings, both in courts of record and before justices of the peace, where the defendants are found, like in replevin, attachment, garnishment, attachment of water craft, and proceedings to sell the real estate of a decedent to pay debts, the statutes provide that in some of the cases named the summons shall be served by \u201c reading\u201d the same, and in other cases by \u201creading\u201d or \u201c delivering,\u201d or \u201cleaving\u201d a copy thereof.\nIn chancery, in' suits for forcible entry and detainer , against corporations, in eminent domain proceedings, and in various other suits and proceedings, the statutes provide for service of the summons where the defendants are found, by \u201c leaving \u201d or \u201c delivering \u201d a copy thereof. It may not be denied that the statutes might provide for a particular form of service in every case, and the only troublesome question is, what will amount to a legal service of a summons so as to confer jurisdiction in cases where the statute prescribes no form or manner of service.\n. In Ball v. Shattuck, 16 Ill. 299, Botsford v. O\u2019Conner, 57 Ill. 72, and McNab v. Bennett, 66 Ill. 157, it is said, in substance, that in cases where it is not otherwise provided by statute, the mode of service of summons is by reading the same to the defendants.\nBut with profound deference for the utterances of the Supreme Court, whether upon questions directly involved, or as argument and by way of illustration merely, it was not necessary to the decision of either of those cases that what was said in the opinions filed therein, should have been said, and the doctrine of stare decisis does not flow from them in regard to the question before us.\nAll that was decided in the first case cited was that the return of a summons which did not show how or when the summons was served conferred no jurisdiction upon the court below.\nThe second case cited decided only that a return which failed to show how the writ was served conferred no jurisdiction.\nIn the third case cited the decision was that a return of the service of a capias which stated that the writ had been executed \u201c by arresting the defendant, who is now in jail,\u201d was not a good service, because \u201c there may be an arrest without service and service without an arrest.\u201d\nAnd in each case it was held that the return as made showed no lawful service.\nThe question of the sufficiency of a return of service either by \u201c reading \u201d or by \u201c delivery of a copy,\u201d the return in all other respects being good, was not involved in either of the cases cited, and what was said in either of the opinions was in fact but by way of illustration.\nIf by what was said in either case it was meant that at common law the method of service was by \u201c reading \u201d the summons to the defendant, we respectfully submit that historically speaking, the statement is not quite accurate.\nAccording to Blackstone (book 3, p. 279), in all personal writs for injuries not against the peace, the summons is described as being a warning to appear in court at the return of the original writ' (when actions were commenced by original writ, instead of as now by writ of summons) given to the defendant by two of the sheriff\u2019s messengers called summoners, either in person or left at his house.\nIn real actions the warning was by erecting a white stick on the defendant\u2019s grounds.\nSee, also, Bouvier\u2019s Law Dictionary, title \u201c Process.\u201d\nThat the \u201c warning \u201d in personal actions, when not left at the house, was verbal and not by reading, is quite clearly inferable from what is said on page 280\u2014\u201cif the defendant disobeys this verbal monition,\u201d then, etc.\nBeyond this reference to Blackstone we are without handy means of ascertaining the manner of service of a summons at common law. In Tidd\u2019s Practice, 109, it is said: \u201c The first process or proceeding upon the original writ * * is a summons or warning to appear * * * which is made out by the plaintiff\u2019s attorney for the sheriff, and delivered by one of his officers to the defendant, or left at the usual place of his abode.\u201d\nThe earliest statutory regulation of the manner of service which we have means of verifying, is that of 12 George I, Ch. 29, S. 1, which in terms requires \u201c personal service on the defendant.\u201d\nThe statute of 2 William IV, Ch. 39, S. 31, requires service \u201c as heretofore,\u201d and that is said by Chitty (General Practice, Vol. 3, p. 260), to refer to the statute of George I, above referred to.\nAlthough these statutes are too recent to be embraced in the common law as adopted by this State, they are cited for historical illustration, and the statutes of 15 and 16 Vict., Ch. 76, S. 17 (Jacob\u2019s Fisher\u2019s Digest, title \u201c Practice,\u201d subdivision \u201c Service,\u201d and \u201c Dispensation with Service,\u201d 10537 and 10543), continue the same requirement that the service \u201c shall as heretofore be personal,\u201d wherever practicable.\nThe inference is not unreasonable that those statutes have merely declared the common law as existing before them, in requiring that the service shall be \u201c personal.\u201d\nThat \u201c personal \u201d service may be as well by delivering a copy of the writ to the defendant as by reading the same to him, or, as said by Blackstone, by verbally informing him of its requirements or by leaving it at his house, does not seem to require much argument.\n\u201c The very object of the service of process is to inform the intended defendant of the necessity for his appearing and pleading to the action.\u201d Chitty\u2019s General Practice, Vol. 3, p. 264.\nWhatever force may have existed in the years when but few knew how to read, in the requirement that a defendant should be told by \u201c summoners \u201d what was required of him by the writ, or should have the writ read to him, appears to us, in the absence of either statute or binding decision, to no longer exist; and that when the statute prescribes only that a writ shall be served, without specifying the manner of service, we may well hold that in these days of a general knowledge of reading, the method of serving by delivering a copy\u2014a mode specifically provided by statute in so many cases\u2014as fully informs the defendant of what is required of him as can be done by word of mouth.\nWe therefore hold that the service by delivering a copy of the summons to the defendant was a valid service, and the judgment will be affirmed.\nMr. Presiding Justice Waterman.\nI think that the legislature should enact that service of process shall, in all oases at law, be by delivery of a copy; such legislation would be prospective only in its operation.\nA decision that service in such manner, without reading, is sufficient, is necessarily retroactive. It must be, in effect, a statement of what the law has in this State ever been. The Supreme Court have certainly led the public to believe that, at law, service of summons without reading, was insufficient. Such has been the general understanding upon which litigants and the bar have acted.\nTo now declare that the utterances of the court of last resort were unwarranted and mistaken, and that in relying thereon, parties have placed themselves in peril of. having judgments entered against them upon service heretofore treated as insufficient, may be fraught with consequences not only troublesome but unjust.", "type": "majority", "author": "Mr. Justice Shepard Mr. Presiding Justice Waterman." }, { "text": "Mb. Justice G-aby.\nI entirely concur in the opinion of Judge Shepard.\nI write only to protest against the doctrine of the cases commented upon, that a court should be presumed to have jurisdiction because it says that it has it, when, if it ever did have jurisdiction, the manner of acquiring it was of record, and there is no record existing.\nA decree in chancery granting relief is erroneous, unless the facts on which it is based, or evidence to prove them, sufficient to justify the decree, are in the record. The opinion of the chancellor as to conclusions is not accepted. Why should it be as to whether a party has been duly served, when it don\u2019t appear that he was served at all ? Randall v. Songer, 16 Ill. 27.", "type": "concurrence", "author": "Mb. Justice G-aby." } ], "attorneys": [ "Brief for Plaintiff in Error, Robert Mather and Henry S. Waldron, Attorneys.", "W. O. Johnson, attorney for defendants in error." ], "corrections": "", "head_matter": "Robert Law v. John B. Grommes and Michael Ullrich.\n1. Courts\u2014Presumptions in Favor of Jurisdiction.\u2014Every reasonable presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction, and the finding in its decree or judgment that a defendant has been duly served with summons will be held to be prima facie evidence of the fact.\n2. Same\u2014How far the Presumption Prevails.\u2014The presumption from a recital in a judgment or decree of the service of summons will prevail only where there is nothing in the record to rebut, impeach or contradict it.\n3. Service of Summons\u2014Sufficiency of.\u2014Personal service upon a defendant in an action at law, may be made as well by delivering a copy of the writ as by reading the same to him.\n4. Same\u2014Object.\u2014The object of the service of process is to inform the defendant of the necessity for his appearing and pleading to the action.\n5. Same\u2014A Eeturn by Delivering a Copy.\u2014The following return: \u201c Served this writ on the within named, Robert Law, by delivering a copy thereof to him this 10th day of April, 1891,\u201d upon a summons in an action of debt upon a foreign judgment, shows a sufficient service of process to confer jurisdiction upon the court.\nMemorandum.\u2014Debt. In the Circu:t Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Judgment by default for want of plea; error by the defendant. Heard in this court at the October term, 1894, and affirmed.\nOpinion filed November 12, 1894.\nBrief for Plaintiff in Error, Robert Mather and Henry S. Waldron, Attorneys.\nIn Belingall v. Gear, 3 Scam. 515, the sheriff\u2019s return on a scire facias to foreclose a mortgage was as follows: \u201c Executed this 20th day of April, 1830, by reading.\u201d Judgment was rendered by default. Holding that this return did not comply with the statute which required the sheriff \u201c to make known to the mortgagor why judgment shall not be rendered,\u201d etc., the court said: \u201c Before a court is authorized to render a judgment by default, it m ist appear clearly and affirmatively, by the return of the officer charged by law with the service of process, that the defendant has been regularly served. The return should show the time and mode of the service, and on whom it is made. It is this service which gives the court jurisdiction over the person of the defendant, and without it or his voluntary appearance to the action, its proceedings are irregular and erroneous.\u201d\nTo the same effect is Ogle v. Coffey, 1 Scam. 239.\nIn Wilson v. Greathouse, 1 Scam. 174, it is said: \u201cThe plaintiff, in a case where the defendant does not appear, proceeds at his peril; he is bound to see that all antecedent proceedings are regular, and if they are not, he necessarily consents to take the consequences of such irregularities.\u201d\nIn Ball v. Shattuck, 16 Ill. 299, the court say: \u201c The mode of service of summons, where not otherwise provided by statute, is by reading the same to the defendants and each of them, and the return should show the time when, upon whom, and how the service was made.\u201d The following form may be adopted in cases where the statute does not otherwise provide:\n\u201c I did, on the-day of-18\u2014, serve this writ, by reading the same to the within named A. B. Dated this -day of-18-\u2014\u25a0\u201e\nO. D., Sheriff of H. C., Ill.\u201d\nAfter this express direction to the sheriff as to manner of making service of summons, there would seem to be no reason or excuse for making mistakes. But the question arose again, and in Botsford v. O\u2019Conner, 57 Ill., at page 77, the language quoted supra, from Ball v. Shattuck, was quoted and approved. And in McNab v. Bennett, 66 Ill., page 161, the court repeats: \u201c Service, under our law, means to read the writ to the party.\u201d\nW. O. Johnson, attorney for defendants in error." }, "file_name": "0312-01", "first_page_order": 308, "last_page_order": 317 }