31 Ill. 162 (Ill. 1863), Banks v. Banks

CourtSupreme Court of Illinois
Writing for the CourtMr. JUSTICE BREESE.
Citation31 Ill. 162
Docket Number.
DateInvalid date
PartiesGEORGE O. BANKS v. LOUISA L. BANKS

Page 162

31 Ill. 162 (Ill. 1863)

GEORGE O. BANKS

v.

LOUISA L. BANKS

Supreme Court of Illinois, Second Grand Division

April, 1863

Page 163

WRIT OF ERROR to the Recorder's Court of the city of Peru; the Hon. WILLIAM CHUMASERO, Judge, presiding.

This was a bill in chancery exhibited in the court below by Louisa L. Banks, the defendant in error, against George O. Banks, the plaintiff in error.

The bill was taken for confessed in the Recorder's Court, and a decree rendered accordingly, and the only question presented upon the record is, as to the sufficiency of the service of process, or, of the evidence of such service. The facts are presented in the opinion of the court.

Decree affirmed.

Mr. G. S. ELDRIDGE, for the plaintiff in error, presented the following points and authorities:

I. The court never acquired jurisdiction over the person of the defendant, so as to authorize it to render the decree.

1. There was no legal service of the summons, and the decree is based solely upon the indorsement upon the back of the summons, purporting to be an acknowledgment of service by the defendant below, which was not proved in any way to have been executed by him, and the court could not, judicially take notice of the genuineness of the signature thereto. Chickering v. Failes, 26 Ill. 507; Jackson v. Speed, 1 Mon. 22; Peers v. Carter's Heirs, 4 Litt. 268; Hudson v. Brendeg, 1 Howard (Miss.) 106; Bozman v. Brower, 6 Howard, 43; Davis v. Jordan, 5 Howard, 205; Divilbis v. Whitman, 20 Ill. 425.

2. The record must show, affirmatively, that the court acquired jurisdiction over the person of the defendant, to render the decree valid, and no presumptions can be indulged in, based upon the decree alone to support it. The clerk has certified all that transpired in the court below, and from which it appears, that the only evidence of the service of the process was, the supposed acknowledgment indorsed upon the back of the summons, the execution of which was not proved in any manner. Randall v. Songer, 16 Ill. 27.

3. Whatever presumptions, if any, might be indulged in to support this decree, if sought to be attacked collaterally, they certainly can have no weight when the case comes directly before this court for review.

II. But I insist further, that under our statute the court can only acquire jurisdiction over the person of the defendant, in the manner therein prescribed, or through the formal appearance of the party in court, and cannot base its jurisdiction upon affidavits, or other collateral proof. The question of jurisdiction is a vital one, and the statute has defined the manner in which it may be acquired, and unless the party voluntarily comes into court, and in some manner submits himself to its jurisdiction, the court can only acquire that jurisdiction in the manner prescribed by the statute. In some States, service of process may be proved by affidavit, but only by express provision of statute...

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7 practice notes
  • 4 Or. 1 (Or. 1869), Heatherly v. Hadley
    • United States
    • Supreme Court of Oregon
    • Invalid date
    ...to give it jurisdiction, they cannot be contradicted in a collateral proceeding. ( Astor v. Grignon's Lessee, 2 How. 319; 39 Ill. 127; 31 Ill. 162; 27 Ill. 145, 496; 33 Cal. 678; 14 Iowa, 309; 22 Me. 128; 18 Pick. 393; 13 Ohio St. 431; 1 Smith's Lead. Cas. 841.) 4. The testimony in this cas......
  • 97 Ill. 294 (Ill. 1881), Chicago Planing Mill Co. v. Merchants' Nat'l Bank
    • United States
    • Supreme Court of Illinois
    • February 3, 1881
    ...P. R. R. Co. v. Koehler, 79 id. 354. And the judgment recited "due service" of process, which is sufficient. Banks v. Banks, 31 Ill. 162; Russell v. Brown, 41 id. 183; Timerman v. Phelps, 27 id. 496; Rivard v. Gardner, 39 id. 125. The amended return of the sheriff is a nullity. So......
  • 39 Ill. 125 (Ill. 1866), Rivard v. Gardner
    • United States
    • Supreme Court of Illinois
    • Invalid date
    ...decree at the time it did so. The decree, however, recites that the defendants were duly served, and, on the authority of Banks v. Banks, 31 Ill. 162; Reddick v. State Bank, 27 Ill. 145, and Timmerman v. Phelps, 27 Ill. 496, this recital in the decree cures the defect in the return. Althoug......
  • 39 Ill. 256 (Ill. 1866), Moore v. Neil
    • United States
    • Supreme Court of Illinois
    • Invalid date
    ...was so held in Reddick v. State Bank, 27 Ill. 145, even on a writ of error. See also Timmerman v. Phelps, 27 Ill. 496, and Banks v. Banks, 31 Ill. 162. Although the certificate of the printer may have been insufficient, yet we must presume, from this recital, that the court received other e......
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5 cases
  • 57 Ill. 72 (Ill. 1870), Botsford v. O'Conner
    • United States
    • Illinois Supreme Court of Illinois
    • Invalid date
    ...stating such facts, and nothing to the contrary appearing, it should be received as evidence of their existence." In Banks v. Banks, 31 Ill. 162, service was acknowledged by defendant, on the back of the summons, and it was objected that there was no evidence in the record that it was ......
  • 39 Ill. 256 (Ill. 1866), Moore v. Neil
    • United States
    • Illinois Supreme Court of Illinois
    • Invalid date
    ...was so held in Reddick v. State Bank, 27 Ill. 145, even on a writ of error. See also Timmerman v. Phelps, 27 Ill. 496, and Banks v. Banks, 31 Ill. 162. Although the certificate of the printer may have been insufficient, yet we must presume, from this recital, that the court received other e......
  • 39 Ill. 125 (Ill. 1866), Rivard v. Gardner
    • United States
    • Illinois Supreme Court of Illinois
    • Invalid date
    ...decree at the time it did so. The decree, however, recites that the defendants were duly served, and, on the authority of Banks v. Banks, 31 Ill. 162; Reddick v. State Bank, 27 Ill. 145, and Timmerman v. Phelps, 27 Ill. 496, this recital in the decree cures the defect in the return. Althoug......
  • 73 Ill. 337 (Ill. 1874), Russell v. Baptist Theological Union
    • United States
    • Illinois Supreme Court of Illinois
    • Invalid date
    ...and that decision is binding upon parties and privies. This question of service was there decided on the case of Banks v. Banks, 31 Ill. 162, which holds such service to be sufficient to confer jurisdiction. The presumption would be, in such a case, that the court heard evidence of the exec......
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