Mackey v. McCaffrey

Appellate Court of Illinois

Mackey v. McCaffrey

23 Ill. App. 595, 1887 Ill. App. LEXIS 60

DecidedAugust 3, 1887

StatusPublished

This text of 23 Ill. App. 595 (Mackey v. McCaffrey) 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

Mackey v. McCaffrey, 23 Ill. App. 595, 1887 Ill. App. LEXIS 60 (Ill. Ct. App. 1887).

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Opinion

McAllister, P. J.

The record shows that the application in question was submitted to and decided by the court, solely upon.the sufficiency of appellants’ petition. To that no exhibits were attached, and in it no reference is made to any transcript or exemplified copy of any Justice’s docket, or of an execution upon the face of the petition. There are not set out the jurisdictional facts requisite to a valid judgment in a Justice’s court. There is nothing to show that the cause of action was one of which a Justice of the Peace has jurisdiction. It is not stated when the summons was made returnable. Then, as to the execution the petition says, “ that an execution was issued thereon on the said 1st day of October. 1886, upon the oath of petitioner’s agent, and immediately thereafter, on. the same day, delivered to George W. Deal, a Constable in and for said county, who then and there indorsed thereon the date of the receipt thereof.” That is the only way in which the exeeution was set out, and that clearly does not show a valid one. It is not even stated who issued it, to say nothing of the body of it. Ho valid execution is described or set out in the petition or appears in the record. And the petition does not state that what the pleader called an execution was delivered to the _ Constable to be executed. Suppose instead of this summary proceeding appellants had brought an action at law upon the alleged claim of their execution, being a prior lien, would they not have been compelled to allege and to prove by competent evidence, a valid judgment and execution? If so, can they now by resorting to this summary and doubtful remedy, be permitted to succeed without any such showing ? We had always supposed that where a remedy is summary, courts always require thát a clear case be made out.

We are of opinion that the question »of the priority of appellants5 lien does not arise upon this record, because it does not appear in any competent way that they had any lien at all. The order appealed from should, therefore, be affirmed.

Affirmed.

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McAllister, P. J.

The record shows that the application in question was submitted to and decided by the court, solely upon.the sufficiency of appellants’ petition. To that no exhibits were attached, and in it no reference is made to any transcript or exemplified copy of any Justice’s docket, or of an execution upon the face of the petition. There are not set out the jurisdictional facts requisite to a valid judgment in a Justice’s court. There is nothing to show that the cause of action was one of which a Justice of the Peace has jurisdiction. It is not stated when the summons was made returnable. Then, as to the execution the petition says, “ that an execution was issued thereon on the said 1st day of October. 1886, upon the oath of petitioner’s agent, and immediately thereafter, on. the same day, delivered to George W. Deal, a Constable in and for said county, who then and there indorsed thereon the date of the receipt thereof.” That is the only way in which the exeeution was set out, and that clearly does not show a valid one. It is not even stated who issued it, to say nothing of the body of it. Ho valid execution is described or set out in the petition or appears in the record. And the petition does not state that what the pleader called an execution was delivered to the _ Constable to be executed. Suppose instead of this summary proceeding appellants had brought an action at law upon the alleged claim of their execution, being a prior lien, would they not have been compelled to allege and to prove by competent evidence, a valid judgment and execution? If so, can they now by resorting to this summary and doubtful remedy, be permitted to succeed without any such showing ? We had always supposed that where a remedy is summary, courts always require thát a clear case be made out.

We are of opinion that the question »of the priority of appellants5 lien does not arise upon this record, because it does not appear in any competent way that they had any lien at all. The order appealed from should, therefore, be affirmed.

Affirmed.

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Bluebook (online)

23 Ill. App. 595, 1887 Ill. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mackey-v-mccaffrey-illappct-1887.