Banks v. Banks
| Decision Date | 30 April 1863 |
| Citation | 31 Ill. 162,1863 WL 3087 |
| Parties | GEORGE O. BANKSv.LOUISA L. BANKS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
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.
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 can it be done. The decree in this case should be reversed. Scates' Comp. 138, Secs. 1 to 11 inclusive, and 150, Sec. 2.
Messrs. LELAND & BLANCHARD, for the defendant in error.
The object of service is to give legal notice of the suit, that the party may, if he will, be heard in his defense. This is accomplished by his acknowledgment of service; or, in other words, by his acknowledgment that he has had notice, and his implied admission of the legal effect of actual service. Norwood v. Riddle, 1 Ala. 195; Lewis v. State Bank, 4 Pike (Ark.) 443; Metz v. Bremond, 13 Texas, 394; Maher v. Bull, 26 Ill. 348.
If it was necessary to prove the signature of the defendant to his written acknowledgment on the summons, the recital in the decree that it “appeared to the court that the respondent had been duly served with process,” was sufficient evidence that it was proven in the court below.
We think the case of Timmerman v. Phelps, 27 Ill. 496, settles this question.
The only question presented by this record is as to the service of the summons in the case. The summons is in the usual form, on which is this indorsement:
In chancery, the service of a summons is by copy. Scates' ...
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The Chicago Planing Mill Co. v. the Merchants' Nat'l Bank.
...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 ......
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Botsford v. O'conner
... ... The record, therefore, 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 ... ...
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... ... 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 ... ...
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Rivard v. Gardner
...a 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 Id. 145, and Timmerman v. Phelps, 27 Id. 496, this recital in the decree cures the defect in the return. Althoug......