Star Brewery of Chicago v. Otto ex rel. Griesser

63 Ill. App. 40, 1895 Ill. App. LEXIS 908

• Court: Appellate Court of Illinois
• Decided: March 3, 1896
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

The statute requires that a notice of the attachment, etc., be mailed to the defendant at his residence, if the same is stated in the affidavit; and that the certificate of the clerk of such mailing shall b aprima facie evidence of the fact. In this case it appears from the affidavit for attachment that the defendant’s residence is Dortmund, Germany. The paper which purports to be such a certificate, and purports to certify that on June 1st a notice was mailed to the defendant F. E. Otto, Dortmund, Germany, is unsigned by the clerk or anybody else, and simply has the file mark on the back thereof.

In attachment proceedings, where the residence of the defendant is given, one of the requisites of jurisdiction is the mailing of notice to the defendant; and proof of such mailing -must be made. Neither the prima facie evidence of mailing designated by the statute, or other evidence of mailing was produced in this case before judgment was entered.

The finding by the court that the defendant had been duly notified of the pendency of the suit by publication and by mailing the same to him, pursuant to the statute, is not sufficient to give to or establish jurisdiction in the court.

The proceeding was not one known to the common law, but statutory and extraordinary.

In such case the finding of a court of superior and general jurisdiction that the facts exist which give it, or that it has jurisdiction, is not sufficient. The facts showing jurisdic-. tion must appear on the face of the proceedings. Haywood v. Collins et al., 60 Ill. 328; St. Louis Coal Mining Co. v. Sandoval Coal Mining Co., 111 Ill. 32.

This court, in Law v. Grommes, 55 Ill. App. 312, held that in a common law proceeding, the record of a court of superior and general jurisdiction reciting that due service of process was had upon a party was sufficient to give jurisdiction, the record containing nothing to impeach or contradict such recital, and that with such recital the judgment as to jurisdiction over the party so found to have been served, was secure from direct attack; following in so holding, Timmerman v. Phelps, 27 Ill. 496; Coursen v. Hixon, 78 Ill. 339; Turner v. Jenkins, 79 Ill. 228; Haworth v. Huling, 87 Ill. 23.

The Supreme Court, in Law v. Grommes, 158 Ill. 492, hold that in a direct proceeding to reverse a common law judgment, the finding by a court of superior and general jurisdiction that a party was only duly served with process, is not sufficient to establish its jurisdiction over the person of such party; and such is now the law of this State.

We are not inclined to interfere with the action of the court below in refusing to permit the amendment asked by appellee.

The judgment of the Superior Court is reversed and the cause remanded.