{
  "id": 2612170,
  "name": "Michael Firebaugh v. Barton Hall",
  "name_abbreviation": "Firebaugh v. Hall",
  "decision_date": "1872-01",
  "docket_number": "",
  "first_page": "81",
  "last_page": "87",
  "citations": [
    {
      "type": "official",
      "cite": "63 Ill. 81"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "2 Gilm. 429",
      "category": "reporters:state",
      "reporter": "Gilm.",
      "case_ids": [
        2559494
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/7/0429-01"
      ]
    }
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  "last_updated": "2023-07-14T19:30:19.405961+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Michael Firebaugh v. Barton Hall."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Breese\ndelivered the opinion of the Court:\nThis was an action of ejectment, in the Champaign circuit court, by Michael Firebaugh against Barton Hall, to recover the possession of certain lands therein situate. There was a trial by the court by consent, and a finding and judgment for the defendant.\nTo reverse this judgment the plaintiff appeals.\nPlaintiff darraigned title from the United States to himself, and proved defendant was in possession at the time of suit brought.\nThe defense was, an outstanding title in one Peabody, through a sale by the sheriff on an execution issued on a judgment rendered by the circuit court against plaintiff in certain attachment proceedings therein, in which Harrison W. Drillinger, administrator on the estate of James Cowden, deceased, was plaintiff, and appellant defendant.\nThe controversy turns on the validity of these proceedings.\nIt appears appellant, with one Benjamin Springer, executed a note to James Cowden, in hi's life time, for two hundred dollars. On the death of Cowden, letters of administration were granted to Harrison W. Drillinger, who, at the October term, 1860, of the Champaign circuit court, instituted a suit on the note against both the makers. Springer alone was served with process, who, at that term, suffered a judgment to be entered against him for default of plea. Judgment Avas rendered against him for tAVO hundred and fifty-tAVO dollars eighty cents, and a scire facias ordered against appellant returnable to the next term of the court, to make him a party to the judgment.\nIt does not appear that a Avrit of scire facias issued against appellant, but Drillinger, administrator, made an affidaxdt of the non-residence of appellant, on the 18th of September, 1861, in the Champaign circuit court, and thereupon, after giving bond, sued out an attachment against the'estate of appellant, Avhich Avas levied by the sheriff on the premises in question.\nAt the folioAving December term, proof of notice of these proceedings by publication in a nexvspaper of the county Avas duly made, and the defendant, appellant here, being called, made default. Whereupon \u201c It xvas considered by the court that the plaintiff hath sustained damages by reason of the non-performance of certain promises in the plaintiff\u2019s declaration mentioned. It is therefore considered by the court that the said defendant be made party to the original judgment heretofore rendered herein; and it is adjudged by the court that the said plaintiff recover of the said defendant the sum of $252.80, being the amount of the judgment heretofore rendered herein^ and also his costs in this behalf expended; and that execution issue therefor. And it is further ordered that a special execution issue herein against the property heretofore attached herein.\u201d\nAppellant contends that these proceedings are void for want of jurisdiction o'f the court, both of the person and of the subject matter of the suit; and also that the description of the land under the levy, and all subsequent proceedings under the attachment, are void for want of certainty.\nTo establish the first proposition, appellant refers to the proceedings in the suit first commenced by Drillinger, administrator of Cowden, against Springer and appellant, by which it appears a scire facias was awarded to make appellant a party to the judgment, and that the proceedings by attachment, which could be issued only in aid of that scire facias, could' not be made to perform the office of a scire facias, and thereby make appellant a party to the judgment. He insists,- as these proceedings were not entitled in aid of the original suit, the court had no jurisdiction to entertain it\u2014that the plaintiff in the first suit must obtain personal service of the scire facias before he can sue out an attachment.\nBut appellee\u2019s counsel insist they were in aid, and were so taken and understood by the court in rendering judgment, as the judgment makes appellant a party to the original judgment in the action of assumpsit, and determines the amount of the recovery by that judgment.\nThe question then would arise, is a party in appellant\u2019s position subject to proceedings by attachment, who has not been personally served with a writ of scire facias?\nWhat is the object of this suit? ,It is to make known to a defendant that a judgment has been rendered against his co-defendant in the action named, and he must appear and show cause why he should not be made a party to that judgment. It is indispensable, to effect this, that the defendant not served originally should have personal notice by service of the writ. This objeet can not be accomplished by attachment proceedings in which there is no personal service. Service of the writ by levy on property gives the court jurisdiction of the property only. To acquire it over the person there must be actual, or constructive notice by publication. If by the latter, it is apparent a defendant may never have knowledge of a judgment against his co-defendant, and if the notice does not name the original suit, it would not accomplish the object. The notice in this case makes no reference to the original suit, and it is a conceded fact that, although a scire facias was ordered by the court on rendering judgment against Springer, no writ of sci. fa. did in fact issue against appellant.\nThe question then arises, by what authority was the attachment proceedings instituted ?\nThe act of 1861, by the first section, provides: \u201cIn all cases where a scire facias shall be sent out of any court of this State, to make any person or persons party to any judgment that now has been or may hereafter be rendered therein, writs of attachment may be issued in aid thereof against one or all of the persons named in such scire facias, to any county of this State, upon the terms and provisions and in the cases provided in the chapter to which this is an amendment, for the issuing of writs of attachment; and the parties to such writs of attachment may be brought in by advertisement, as in other cases of attachment, when personal service can not be had.\u201d Laws of 1861, p. 171.\nHere we find an express provision authorizing proceedings by attachment in aid of a scire facias only in cases where such \u25a0writ has been \u201csent out\u201d or issued out of any court of this State. It is in such cases only that resort can be had to an attachment to aid it. Before this statute was adopted an attachment could be sued out in aid of the summons which had issued in the original action, and which summons must be served.\nThe case of Moore v. Hamilton, 2 Gilm. 429, is directly in point. In that case Hamilton had brought an action of assumpsit against Moore by summons, which was not served on Moore. Subsequently Hamilton sued out an attachment in aid of this action, which was levied on the real and personal estate of Moore, and notice of its pendency was given by publication only. On proof of publication, Moore not appearing, his default was entered, and the plaintiff's damages were assessed and judgment rendered for the same. It did not appear that the action of assumpsit had been disposed of. The court held, the judgment was unwarranted for want of personal service upon the defendant.\nThe court say, an attachment in aid of a suit already commenced is but an adjunct of such suit, not a distinct proceeding. It is to be entitled in the pending suit, and be in aid thereof. It is only process and a part of the proceedings in the case originally commenced. By the service of the writ of attachment, the defendant is prevented from alienating or carrying away his estate during the pendency of the suit. If the action proceeds to judgment, and the attachment is not in the meantime dissolved, the plaintiff has the benefit of a general judgment against the defendant, and a specific lien on the estate attached for its payment. Before the plaintiff can realize the fruits of the attachment by subjecting the property to sale, he must procure a service of the process in the original action and obtain judgment therein. The action must first be disposed of\u2014if it fails, the attachment goes with it.\nThe court further say, if the plaintiff can not procure a service of the process, his proper course is to discontinue his case and sue out an original attachment. If this attachment can be regarded as an independent proceeding, one of the principal provisions of the attachment law could be easily evaded. The statute only allows the remedy by attachment to recover indebtedness growing out of contract, express or implied, or ascertained and liquidated by a judgment. An original attachment can not be sued out for the purposes of recovering damages for a tort. By the 30th section, an attachment may be sued out in aid of an action of trespass. The court say, if the attachment thus instituted could be carried on without reference to the pending action, the effect would be to permit the plaintiff to recover a judgment in attachment against a non-resident for a personal injury. This would allow him to do indirectly, by this kind of proceeding, what he can not do directly by an original proceeding. The court concludes by saying, the remedies by attachment are in derogation of the common law, and ought not to be extended by implication.\nThis case holds, when process has not been served in the original action, an attachment in aid thereof can not be resorted to, and that the court has no jurisdiction to entertain such a proceeding.\nBy the 1st section of the act of 1861, cited above, an attachment in aid of a scire facias to make a person party to a judgment, can be had only when a scire facias has been issued; it must have been \u201csent out\u201d of the court. Until it is \u201csent out\u201d or issued, it is clear the circuit court has no jurisdiction of an attachment in aid thereof, for there is nothing on which to base it. No writ of scire facias having been \u201csent out,\u201d the court had no jurisdiction of the attachment in aid, for there then was nothing to aid by such a proceeding. We can not, by implication, extend the operation of this statute, but must hold parties to a strict observance of its provisions.\nIn attachment cases jurisdiction is conferred by special grants from the legislature, and the doctrine of presumption, as applicable to courts in the exercise of their common law powers, does not and can not apply.\nThe views we have here expressed render it unnecessary to notice the other points made. The court having no jurisdiction of the attachment proceedings, the judgment thereon, and all proceedings thereunder, were void.\nThe supposed outstanding title in Peabody having been acquired under these proceedings, was of no effect, and can not prevail against appellant in the ejectment.\nThe judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Breese"
      }
    ],
    "attorneys": [
      "Mr. C. B. Smith, for the appellant.",
      "Mr. B>. C. Wright.and Mr. J. S. Jones, for the appellee."
    ],
    "corrections": "",
    "head_matter": "Michael Firebaugh v. Barton Hall.\n1. Attachment\u2014jurisdiction\u2014presumption. In attachment cases, jurisdiction is conferred by special grants from the legislature, and the doctrine of presumptions, as applicable to courts in the exercise of their common law powers, does not and can not apply. Their jurisdiction must affirmatively appear on the face of the proceedings.\n2. Same\u2014in aid of sei. fa. to make party to judgment\u2014jurisdiction. Under the act of 1861, an attachment in aid of & scire facias to make a person a party to a judgment, can be had only when obscure facias has been issued. Until it is issued the circuit court has no jurisdiction of an attachment in aid thereof, because there is nothing on which to base it,\u2014nothing to which it can attach in aid thereof.\n3. Same\u2014notice by publication\u2014requisites. Service of the writ by levy on property gives the court jurisdiction over the property only. To acquire it over the person of the defendant, there must be actual, or constructive notice by publication, and where the writ is in aid of a scire facias to make a party to a judgment, it seems that the published notice, in order to confer jurisdiction, should refer to the original suit, so as to apprise the party of the existence of the judgment against his co-defendant. .\n4. Judgment\u2014void for want of jurisdiction. In this case it appeared that suit was brought against A and B upon a note, in 1860, and. service being had upon A only, judgment was rendered against him, and a scire facias ordered to issue against B, which, however, was never in fact issued.\nAfter the passage of the act of 1861, amending the attachment law, an attachment was sued out against B and levied upon his lands. Notice by publication was given, but it contained no reference to the prior proceeding or to the scire facias. Upon this notice, there being no personal service or appearance, judgment was rendered by default, making B a party to the original judgment, and awarding special executionfor the sale of the lands attached. They were sold, and sheriff\u2019s deed executed to the holder of the certificate of purchase: Held, on the trial of an action of ejectment, that the judgment of the court was void for want of jurisdiction, and that consequently the sale and all proceedings under it were void.\nAppeal from the Circuit Court of Champaign county; the Hon. A. J. Gallagher, Judge, presiding.\nMr. C. B. Smith, for the appellant.\nMr. B>. C. Wright.and Mr. J. S. Jones, for the appellee."
  },
  "file_name": "0081-01",
  "first_page_order": 83,
  "last_page_order": 89
}