Day v. Cushman, Eaton & Co.

Illinois Supreme Court

Day v. Cushman, Eaton & Co.

2 Ill. 475

DecidedDecember 15, 1838

StatusPublished

This text of 2 Ill. 475 (Day v. Cushman, Eaton & Co.) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Day v. Cushman, Eaton & Co., 2 Ill. 475 (Ill. 1838).

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Opinion

Smith, Justice,

delivered the opinion of the Court:

This was a proceeding under the statute, on a scire facias to foreclose a mortgage. Amongst other errors assigned, it is proposed to notice but two:—First, The scire facias commands the defendant, in the Circuit Court, to answer the complaint of Cushman, Eaton & Co., without disclosing the Christian names of Cushman and Eaton, or of those embraced under the term Co.— Secondly, The scire facias does not aver that the last instalment of money, to secure the payment of which the mortgage was given, had fallen due.

It is too obvious to doubt, that the omission of the Christian names of the plaintiffs in the action, as, also, of the names of the persons who composed the Company, is fatal—equally so, the neglect to state, as the statute has declared, that the last payment had become due, before the suing out of the scire facias. As the proceedings under the statute are summary, it should be strictly complied with.

The statute of jeofails does not cure the omissions; and as there has been no appearance, the errors have not been waived. Judgment reversed with costs.

Judgment reversed.

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Smith, Justice,

delivered the opinion of the Court:

This was a proceeding under the statute, on a scire facias to foreclose a mortgage. Amongst other errors assigned, it is proposed to notice but two:—First, The scire facias commands the defendant, in the Circuit Court, to answer the complaint of Cushman, Eaton & Co., without disclosing the Christian names of Cushman and Eaton, or of those embraced under the term Co.— Secondly, The scire facias does not aver that the last instalment of money, to secure the payment of which the mortgage was given, had fallen due.

It is too obvious to doubt, that the omission of the Christian names of the plaintiffs in the action, as, also, of the names of the persons who composed the Company, is fatal—equally so, the neglect to state, as the statute has declared, that the last payment had become due, before the suing out of the scire facias. As the proceedings under the statute are summary, it should be strictly complied with.

The statute of jeofails does not cure the omissions; and as there has been no appearance, the errors have not been waived. Judgment reversed with costs.

Judgment reversed.

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Bluebook (online)

2 Ill. 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-cushman-eaton-co-ill-1838.