The Chicago Planing Mill Co. v. the Merchants' Nat'l Bank.
| Decision Date | 03 February 1881 |
| Citation | 1881 WL 10412,97 Ill. 294 |
| Parties | THE CHICAGO PLANING MILL COMPANYv.THE MERCHANTS' NATIONAL BANK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.
On June 10, 1876, defendant in error sued out a summons against the plaintiff in error, which is a corporation having its place of business in Cook county, Illinois. The summons was returned by the sheriff with this return:
“The president of the within named company not being found in my county, served this writ by reading and delivering a copy thereof to William H. Jenkins, secretary of said company, this 13th day of June, 1876.
FRANCIS AGNEW, Sheriff.
By Walter McDonald, Deputy.”
On July 6, 1876, the court found that “due personal service of process of summons issued in said cause has been had on defendant, etc., that defendant made default,” etc., and gave judgment by default for $4052.66.
On August 15, 1877, the plaintiff below having been notified and being in court, the defendant being present by its attorney, the sheriff asked leave to amend his return upon the summons in accordance with the facts. To show the reason of doing so, and why leave should be granted, he filed the affidavit of Walter McDonald, the deputy sheriff who made the service and return, and who made affidavit that he served the summons in accordance with the directions written in pencil upon the said summons; that at the time he served said summons and made said return he did not personally know that Jenkins was secretary of said company, defendant. He did not know who was the president of said planing mill company, that he made no inquiry as to who the president was, and that he made no attempt to find said president. The return upon said summons, in so far as it implies that the president of said planing mill company could not have been found in Cook county, is incorrect, and was made by inadvertence. He made the service upon the person he was directed to serve, and made no attempt to serve any one else. He also filed the affidavit of A. C. Hesing, that he was at the time president of the company, defendant, and that he was continuously in the city of Chicago, at his office or residence, during the lifetime of the summons; also, that Wm. H. Jenkins was not the secretary of the company at the time of the service, but that Washington Hesing was such secretary. Also the affidavits of Washington Hesing and Wm. H. Jenkins, to the fact that Jenkins had resigned his position as secretary of the company more than a month before the summons was issued, and that at the time of the service Washington Hesing was secretary, and not Jenkins.
The plaintiff below resisted the application of the sheriff to amend, and filed the affidavit of Alfred B. Mason, its attorney.
The court granted leave to amend the return, and the sheriff afterwards amended the return so as to read as follows:
“By leave of court the above return is stricken out and amended in accordance with the facts, so as to read as follows: Served this writ by reading and delivering a copy thereof to William H. Jenkins, by direction, as secretary, this 13th day of June, A. D. 1876.
FRANCIS AGNEW, Sheriff.
By Walter McDonald, Deputy.”
Upon this record the plaintiff in error comes into this court, and assigns for error that the court erred--
1. In finding that the defendant had due personal service of the summons.
2. In ordering that the default of defendant be taken and entered.
3. In rendering judgment in favor of the plaintiff against the defendant as in default, and asks that the judgment be vacated.
Mr. JAMES E. MONROE, for the plaintiff in error:
At common law the court may amend in all cases while the proceedings are in paper,--that is, until judgment be signed, and during the term at which it is signed, for until then the proceedings are in fieri, and consequently subject to the control of the court. After the term at which judgment was rendered has expired, no amendment can be allowed at common law, but by virtue of the statutes of amendment only. 2 Archbold's Prac. p. 263; 1 Burrill's Prac. p. 476; Blackamore's Case, Coke's Rep. pt. 8, 156.
After the term, the record is amendable no further than is allowed by the statutes of amendment. 2 Tidds' Prac. 942.
As to the power of courts to allow amendments after the term when judgment is rendered, counsel cited Wooden & Hazel's Case, 1 Leonard, 134; Kendall v. Corland, 5 Cush. 79; Stewart v. Stringer, 45 Mo. 113; McClure v. Wells, 46 Id. 311; White River Bank v. Downer, 29 Vt. 233; Balcolm v. Woodruff, 7 Barb. 14; Gasper v. Adams, 24 Id. 256; Holmes v. Sealy, 17 Wend. 75; McGhee v. McGhee, 8 Ala. 86; Armstrong v. Robertson, 2 Id. 168; Moyer v. Cook, 12 Wis. 335; Newhall v. Provost, 6 Cal. 85; Cairo Railroad Co. v. Holbrook, 72 Ill. 419; King v. State Bank, 9 Ark. 185; Auspatch v. Carr, 1 Troubet & Haley's Pr. 270; Reiff v. Ins. Co. 1 Brightly's Pr. Dig. 43.
The amendment made in the court below is authorized by our statute of amendments and jeofails. Rev. Stat. 1874, p. 137, secs. 1, 2, 4; Mineral Point Railroad Co. v Keep, 22 Ill. 16; Carr v. Com. Bank, 16 Wis. 50; Dunn v. Rogers, 43 Ill. 262.
Messrs. MATTOCKS & MASON, for the defendant in error:
The first return was good. The only company mentioned in the summons is the defendant below, and the return was of service on the “within named” company. This phrase is held sufficient in Martin v. Hargardine, 46 Ill. 322, and C. & P. R. R. Co. v. Kæhler, 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 far as it is one of service on Jenkins “ as secretary,” the amendment was beyond the power of the court below to allow, for this court has decided that a party to a suit can not contradict the sheriff's return in that suit, save, 1st, under very exceptional circumstances, and, 2d, at the term during which judgment is rendered. Wilday v. McConnell, 63 Ill. 268; Brown v. Brown, 59 Id. 315; Rivard v. Gardner, 39 Id. 125.
That a sheriff can not falsify his return or that of his deputy, counsel cited, Norris v. Grummey, 2 Rand. 323; Planter's Bank v. Walker, 3 Sm. & M. 409; VanCampen v. Snyder, 3 How. 66; Sheldon v. Payne, 3 Seld. 453; Townsend v. Olive, 5 Wend. 208; Clark v. Withers, 6 Mod. Rep. 290, or 2 Ld. Ray. 1072; Heath's Maxims, 177; Paxton v. Stoeckel, 2 Barr, 93; Purington v. Loring, 7 Mass. 388; Williams v. Brackett, 8 Id. 240; Gardner v. Hosmer, 6 Id. 325; Haines v. Small, 22 Mo. 16; Grant v. Shaw, 1 Root, 526; Benjamin v. Hathaway, 3 Conn. 528; Scott v. Seiler, 5 Watts, 235; Denton v. Livings ton, 9 Johns. 96; Barney v. Weeks, 4 Vt. 146; Armstrong v. Garrow, 6 Cow. 465, and Meredith v. Shewell, 1 Pa. 496.
An amendment must be in furtherance of justice. Palmer v. Thayer. 28 Conn. 237; Kirkwood v. Reedy, 10 Kan. 453; Wendell v. Mugridge, 10 N. H. 109; Tiernan's Exrs. v. Woodruff, 3 McLean, 135; Smith v. Vanderburg, 46 Ill. 34; Clayton v. State, 24 Ark. 16; Cornelia v. Ellis, 11 Ill. 581.
An amendment can be made only “by a memorandum made by the officer at the time the service was had, and which clearly and unmistakably states the facts omitted in the return.” O'Conner v. Wilson, 57 Ill. 226; Coughran v. Gutcheus, 18 Id. 390; Powell v. Commonwealth, 11 Gratt. 822; Wynne v. Thomas, Willes Rep. 563; Queen v. Virrier, 40 E. C. L. Rep. 48; King v. King, 7 Mod. 250; Green v. Rennett, 1 T. R. 782; Fitzgerald v. Garvin, Hardin, 63; Seely v. Pelton, 63 Ill. 101; Frink v. Frink, 43 N. H. 508; Randolph v. Barrett, 16 Peters, 138; Scales v. Swan, 9 Por. (Ala.) 163; Limerick Petitioners, 6 Shepley, (Me.) 183; Sydnor v. Burke, 4 Randolph, 161; Vaughan v. Freeland, 2 Munf. 477, note; Scruggs v. Scruggs, 46 Mo. 271; Pratt v. Wheeler, 6 Gray, 520; Haven v. Snow, 14 Pick. 28; Johnson v. Day, 17 Id. 196; Hovey v. Wait, Id. 196; Adams v. Robinson, 1 Id. 461.
That amendment, after judgment, may be allowed to cure an error, but not to create it, counsel cited, Rev. Stat. 1874, p. 778, sec. 24, and secs. 1, 2, 4 and 6 of the Statute of Amendments; McClure v. Wells, 46 Mo. 311; Stewart v. Stringer; 45 Id. 113; Newhall v. Provost, 6 Cal. 85; White River Bank v. Downer, 29 Vt. 332; Hopkins v. Burch, 3 Ga. 222; Watkins v. Gale, 4 Ala. 153; McGehee v. McGehee, 8 Id. 86; Wendell v. Mugridge, 29 N. H. 109; Stewart v. Springer, 45 Mo. 115; Davis v. Putnam, 5 Gray, 321; O'Connell v. Cotter, 44 Ia. 48; Moyer v. Cook, 12 Wis. 335; Powell v. Commonwealth, 11 Gratt. 822, and Gasper v. Adams, 24 Barb. 287. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:
This case was considered by us at our September term. 1877, and an opinion was filed, and judgment rendered thereon, subsequently, in vacation. Planing Mill Co. v. National Bank, 86 Ill. 587. By inadvertence, the judgment was made to affirm the judgment of the Superior Court, when it was, in reality, intended to affirm only an order of that court allowing an amendment of the sheriff's return to the summons, and to reverse the judgment of the Superior Court.
Upon having our attention called to this mistake, we, of our own motion, ordered a rehearing of the cause; and we have heard additional arguments on the question, of whether it was proper to allow the amendment to be made to the sheriff's return to the summons.
The question has been thoroughly discussed on both sides, and we have given such careful and deliberate consideration to it as we have deemed necessary to a correct conclusion.
That the return, as originally made, was sufficient, and that as amended, it is insufficient to sustain the judgment, is fully shown by the former opinion.
In the earlier cases in this court, it was held the circuit court may authorize a sheriff to amend his return, either before or after the rendition...
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