Filkins v. O'Sullivan

79 Ill. 524

• Court: Illinois Supreme Court
• Decided: September 15, 1875
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

This was a writ of error to the circuit court of Cook county, and the only point made on the record necessary to be considered is, that the circuit court had no jurisdiction of the person of the defendant, so as to render a judgment against him.

The action was assumpsit, against plaintiff in error, on her guaranty endorsed on a promissory note, and a judgment was taken against her by default, and the point is made there was no service of process on her.

It appears the writ was served, not by the sheriff or other officer, but by a person deputized by the sheriff, bearing the same name as that of one of the plaintiffs in the action, and, nothing appearing to the contrary, this court will presume the person who served the summons was the party plaintiff, from identity of names. Brown, impleaded, etc. v. Metz, 33 Ill. 339. A party to the suit can not serve his own writ. Woods v. Gilson, 17 ib. 218.

Another objection is, the return was not sworn to as the statute requires. There is no affidavit of any kind attached to the return. The statute provides that such special deputy shall make return of the time and manner of making such service, in writing, verified by his oath or affirmation, made before some officer competent to administer oaths. Sess. Laws 1869, p. 399, sec. 1.

The judgment being by default, advantage can be taken here of this failure to comply with the statute. The court had no jurisdiction of defendant’s person. Noleman v. Weil, 72 111. 502—a case in all respects like this.

The judgment is reversed.

Judgment reversed.