Cloyd v. Trotter

• Court: Illinois Supreme Court
• Writing for the Court: SCOTT
• Citation: Cloyd v. Trotter, 118 Ill. 391, 9 N.E. 507 (Ill. 1886)
• Decision Date: 10 November 1886
• Parties: CLOYD v. TROTTER.

118 Ill. 391

9 N.E. 507

CLOYD

v.TROTTER.

Supreme Court of Illinois.

November 10, 1886.

Error to Wayne.

E. Beecher, for plaintiff in error.

H. Tompkins, for defendant in error.

SCOTT, C. J.

The bill in this case was brought in the circuit court of Wayne county by William Trotter against James C. Cloyd, and was to remove a cloud from the title to property which complainant claimed to own. A decree was rendered in accordance with the prayer of the bill, and, as the title to the property is involved, defendant brings the case directly to this court on error, as he is authorized by law to do. No question is raised on the bill, and the assignment of errors does not make any discussion of the merits of the case necessary.

Defendant is a non-resident of the state of Illinois, and the service upon him was by a service of a copy of the bill upon him at his residence in the city of New York. It is objected the service was insufficient; and as there was no appearance by defendant, or by any solicitor for him, the court had no jurisdiction to render the decree it did.

Section 14 of the chancery act (Rev. St. 1874, p. 200) provides: ‘The complainant may cause a copy of the bill, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being without this state not less that thirty days previous to the commencement of the term at which such defendant is required to appear, which service, when proved to the satisfaction of a court, shall be as effectual as if such service had been made in the usual form within the limits of this state.’ The point is made, against the sufficiency of the service in this case, that the notice of the commencement of the suit was not signed, either by complainant, or any solicitor for him. The statute does not in terms require that the notice to be served shall be signed either by complainant or his solicitor, but the better practice, no doubt, is that it should be signed. In this case the notice was attached to the bill, and may be treated as a part of it; and, as the bill was signed by the solicitor of complainant, that is thought to be sufficient, and expecially when considered in connection with the affidavit of the party making the service, wherein it is alleged he ‘served a copy of the within bill, and notice of the commencement of the suit, upon’ defendant. In this respect, the notice is sufficient.

It is further objected no summons was issued for defendant, and no effort made to obtain personal service upon him. Here, again, the statute is silent. It is not provided summons shall be issued, and returned ‘not found,’ before a defendant residing or being without the limits of this state may be served with a copy of the bill filed against him, and of a notice of the commencement of a suit. But, if the statute did require the issuing and return of a summons, it is thought this record does show a summons was issued, and returned ‘not found,’ as to defendant before the copy of the bill was served upon him.

The question of jurisdiction is always a preliminary one; and the court, in this case, found by its decree it appeared ‘to the court a summons had been issued against defendant, and returned ‘not found.” There is nothing in the record itself that contradicts this finding of the court, and it must therefore be regarded as having been correctly found. No summons is found in the record for defendant. The...