Lyon ex rel. Mumford v. Crew Levick Co.

Appellate Court of Illinois

Lyon ex rel. Mumford v. Crew Levick Co.

63 Ill. App. 329, 1896 Ill. App. LEXIS 803

DecidedMarch 31, 1896

StatusPublished

This text of 63 Ill. App. 329 (Lyon ex rel. Mumford v. Crew Levick Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyon ex rel. Mumford v. Crew Levick Co., 63 Ill. App. 329, 1896 Ill. App. LEXIS 803 (Ill. Ct. App. 1896).

Pincite

Opinion

Mr. Presiding Justice Gary

delivered the opinion op the Court.

August 15, 1895, a garnishee summons against the appellee, in favor of the appellants, was issued by a justice of the peace and served on the appellee, to which it paid no attention. Then a conditional judgment having been entered, a scire facias was issued and served upon the appellee, and still it paid no attention, and judgment was entered against the appellee September 12, 1895. In all the proceedings thus far stated the word “ oil ” was interpolated in the name of the appellee, so that it read the “ Crew Levick Oil Company.”

Both writs were served upon F. B. De Beck, agent, who was, in fact, manager of the appellee, and so signed the bond given on the appeal by certiorari, hereinafter stated.

October 9, 1895, appellee filed a petition for a certiorari, verified, not by De Beck, but by one who says by affidavit, sworn October 8, 1895, “that he is superintendent of” the appellee, in which petition it is stated that the appellee “ had no knowledge or information of the commencement or pendency of a suit against it, or of the rendition of said judgment,” until a copy of an execution was delivered to it October 7, 1895.

De Beck was the man who was served. JSTotice to him was notice to the appellee.

The theory of the petition is that a misnomer of a corporation in writs served upon it renders the writs void. That is not the law. Railroad v. Reidmond, 11 Lea (Tenn.), 205; Mora. Corp., Sec. 355; Hammond v. People, 32 Ill. 446. See separate opinion of Judge Breese, pp. 472-3. This is a clear case of neglect by the appellee to appeal in the ordinary way.

The appellants were justified in declining to try the case again, and the judgment of the Circuit Court dismissing their suit is reversed, and the cause remanded with directions to the Circuit Court to dismiss the petition at the cost of the appellee here. The appellants recover their costs in this court.

Reversed and remanded with directions.

Free access — add to your briefcase to read the full text and ask questions with AI

Mr. Presiding Justice Gary

delivered the opinion op the Court.

August 15, 1895, a garnishee summons against the appellee, in favor of the appellants, was issued by a justice of the peace and served on the appellee, to which it paid no attention. Then a conditional judgment having been entered, a scire facias was issued and served upon the appellee, and still it paid no attention, and judgment was entered against the appellee September 12, 1895. In all the proceedings thus far stated the word “ oil ” was interpolated in the name of the appellee, so that it read the “ Crew Levick Oil Company.”

Both writs were served upon F. B. De Beck, agent, who was, in fact, manager of the appellee, and so signed the bond given on the appeal by certiorari, hereinafter stated.

October 9, 1895, appellee filed a petition for a certiorari, verified, not by De Beck, but by one who says by affidavit, sworn October 8, 1895, “that he is superintendent of” the appellee, in which petition it is stated that the appellee “ had no knowledge or information of the commencement or pendency of a suit against it, or of the rendition of said judgment,” until a copy of an execution was delivered to it October 7, 1895.

De Beck was the man who was served. JSTotice to him was notice to the appellee.

The theory of the petition is that a misnomer of a corporation in writs served upon it renders the writs void. That is not the law. Railroad v. Reidmond, 11 Lea (Tenn.), 205; Mora. Corp., Sec. 355; Hammond v. People, 32 Ill. 446. See separate opinion of Judge Breese, pp. 472-3. This is a clear case of neglect by the appellee to appeal in the ordinary way.

The appellants were justified in declining to try the case again, and the judgment of the Circuit Court dismissing their suit is reversed, and the cause remanded with directions to the Circuit Court to dismiss the petition at the cost of the appellee here. The appellants recover their costs in this court.

Reversed and remanded with directions.

Cite This Page — Counsel Stack

Bluebook (online)

63 Ill. App. 329, 1896 Ill. App. LEXIS 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyon-ex-rel-mumford-v-crew-levick-co-illappct-1896.

Opinion

Related

Cite This Page — Counsel Stack