Divilbiss v. Whitmire

• Decision Date: 30 April 1858
• Citation: 1858 WL 6113,10 Peck 425,20 Ill. 425
• Parties: GEORGE DIVILBISS, Administrator of Nathan'l C. Divilbiss, deceased, Plaintiff in Error,v.JAMES S. WHITMIRE, Assignee of D. J. Stewart, Defendant in Error.
• Court: Illinois Supreme Court

20 Ill. 425
1858 WL 6113 (Ill.)
10 Peck (IL) 425

GEORGE DIVILBISS, Administrator of Nathan'l C. Divilbiss, deceased, Plaintiff in Error,
v.
JAMES S. WHITMIRE, Assignee of D. J. Stewart, Defendant in Error.

Supreme Court of Illinois.

April Term, 1858.

Error to Marshall.

The return to a summons in chancery, which states service by delivering a true copy to the within named, etc., he being a white person over ten years old, on, etc., as within commanded, is a nullity, and no default can be taken upon it.

THIS was a bill in chancery, filed in the Marshall circuit court, in March, 1856, by Whitmire, as assignee of Stewart, against Nathaniel C. Divilbiss, who is now deceased. A summons was issued, and returned as set out in the opinion. Upon this return a default was taken, and a decree of foreclosure by default was entered upon it.

N. H. Purple, for plaintiff in error.

J. Clark, for defendant in error.

BREESE, J.

It is only necessary to advert to the first error assigned, which is, “Rendering a decree by default against the defendant, there being no service of process on him, and no equity on the face of the bill.”

The summons is in the usual form, against Nathaniel C. Divilbiss, and the return upon it is as follows:

“I have served this writ by delivering a true copy of the same to the within named James Divilbis, he being a white person over 10 years old, on this second day of May, A. D...