Cairo v. Holbrook

• Decision Date: 30 June 1879
• Citation: 92 Ill. 297,1879 WL 8523
• Parties: CAIRO AND ST. LOUIS RAILROAD COMPANYv.HENRY HOLBROOK
• Court: Illinois Supreme Court

92 Ill. 297

1879 WL 8523 (Ill.)

CAIRO AND ST. LOUIS RAILROAD COMPANY

v.HENRY HOLBROOK

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the City Court of Alton; the Hon. HENRY S. BAKER, Judge, presiding.

Messrs. JUDD & WHITEHOUSE, and Messrs. SEARLS & PAYSON, for the appellant.

Mr. CHARLES W. THOMAS, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by the Cairo and St. Louis Railroad Company, against Henry Holbrook, to enjoin the collection of a judgment rendered by default, in favor of Holbrook, in the circuit court of St. Clair county, at the October term, 1872, against the company, for the sum of $9500.

It is first contended that the circuit court did not acquire jurisdiction over the railroad company by proper service of summons, and upon this ground the judgment is void.

The fourth section of the act of 1872 in regard to practice in courts of record, Laws of 1872, p. 339, which was in force when the summons was served, provides, “An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county.” The return on the summons by the sheriff was as follows:

“ September 4, A. D. 1872.

Served by reading to and delivering a true copy to Wm. R. Morrison, a director of the defendant, the president of the defendant not residing or being found in my county.

JAMES W. HUGHES, Sheriff.”

The objection to the sufficiency of the service, as we understand it, is, that the return fails to show what was served and is silent as to a copy of what was delivered. The objection is exceedingly technical, and one that can not be sustained without giving the return a strained and unnatural construction, which we do not understand the policy of the law requires. The return was endorsed on the back of the summons, and when the officer stated that he served by reading and delivering a true copy to Wm. R. Morrison, a director of the defendant, the common sense of the language used was sufficient to convey the meaning to any person of ordinary capacity that he had served the writ by delivering a copy thereof, and this is all that could be required. In McNab v. Young, 81 Ill. 11, where the sheriff returned “I have, this 10th day of May, 1863, served the _____ writ by leaving a true _____ of the same in the hands of Horatio N. Heald,” the same was held to be sufficient. The court said: “By every fair and reasonable intendment, as to Heald the service was good. It is impossible to doubt, although the word copy is omitted from the whole return, a copy of the writ was left with Heald.”

In Chicago and Pacific Railroad Co. v. Kæhler, 79 Ill. 354, where the sheriff made a return, “Served the within named railroad company by reading the same and delivering a copy thereof to J. G. Ogden, cashier of said railroad company, this 24th day of March, 1875, the president of said company could not be found in my county, this 5th day of April, 1875,” this return was held to be sufficient, notwithstanding it did not state in terms that the writ was read and there was a doubt as to the date of service. Other decisions bearing on the question might be cited, but it is not necessary. The plain and obvious meaning of the language used in the return shows a substantial compliance with the statute in the service of the summons, and this is all that is required.

It is also urged that the return is not true, and this position is based on the testimony of Mr. Morrison, who in substance said he had no recollection of ever being served, still he might have been. The return of an officer on a summons made in the discharge of an official duty can not be impeached by testimony so uncertain as this. The fact that Morrison did not remember that he was served, fails to establish a want of service. It would be a dangerous precedent to hold that the validity of a judgment rested on...