Waggoner v. Green

40 Ill. App. 648, 1891 Ill. App. LEXIS 57

• Court: Appellate Court of Illinois
• Decided: June 2, 1891
• Status: Published

Opinion

Waterman, J.

It must be presumed plaintiff in error was duly served with process; the return of the sheriff is at law conclusive in this regard. Harrison v. Hart, 21 Ill. App. 348; Lutch v. Colson, 8 Ill. App. 458; Fitzgerald v. Kimball, 86 Ill. 396; Hunter v. Stoneburner, 92 Ill. 75.

nevertheless the judgment rendered must he reversed, because it appears from the record that the plaintiff below was not entitled to take the judgment he did. Garden City Ins. Co. v. Stewart, 79 Ill. 259.

Only a blank form for a declaration -was filed; this it is admitted can not he considered a declaration, but it is insisted that in this proceeding this court must presume that a declaration was filed, and having been lost, does not now appear.

If this court is to indulge any presumption as to things not found in the record, it must, in order to sustain this judgmerit, not only presume that a declaration was filed, out that it was in all respects sufficient to sustain the judgment; which presumption would be equivalent to holding that a judgment is most secure when no declaration upon which it is based can be found. If a declaration exists, it may contain defects fatal to the judgment, but defects to a declaration, no trace of which exists, can not be pointed out.

If a declaration was filed and has been lost, the plaintiff below is entitled to have it restored; but no steps to restore such essential part of the record seem to have been taken, and the record before us is of a judgment entered in a case where no declaration had been filed; the omission is fatal and is not covered by the statute of amendments and jeofails.

Reversed and remanded.