Firebaugh v. Hall

• Decision Date: 31 January 1872
• Citation: 1872 WL 8111,63 Ill. 81
• Parties: MICHAEL FIREBAUGHv.BARTON HALL.
• Court: Illinois Supreme Court

63 Ill. 81

1872 WL 8111 (Ill.)

MICHAEL FIREBAUGH

v.BARTON HALL.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Champaign county; the Hon. A. J. GALLAGHER, Judge, presiding.

Mr. C. B. SMITH, for the appellant.

Mr. R. C. WRIGHT and Mr. J. S. JONES, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment, in the Champaign circuit court, by Michael Firebaugh against Barton Hall, to recover the possession of certain lands therein situate. There was a trial by the court by consent, and a finding and judgment for the defendant.

To reverse this judgment the plaintiff appeals.

Plaintiff darraigned title from the United States to himself, and proved defendant was in possession at the time of suit brought.

The defense was, an outstanding title in one Peabody, through a sale by the sheriff on an execution issued on a judgment rendered by the circuit court against plaintiff in certain attachment proceedings therein, in which Harrison W. Drillinger, administrator on the estate of James Cowden, deceased, was plaintiff, and appellant defendant.

The controversy turns on the validity of these proceedings.

It appears appellant, with one Benjamin Springer, executed a note to James Cowden, in his life time, for two hundred dollars. On the death of Cowden, letters of administration were granted to Harrison W. Drillinger, who, at the October term, 1860, of the Champaign circuit court, instituted a suit on the note against both the makers. Springer alone was served with process, who, at that term, suffered a judgment to be entered against him for default of plea. Judgment was rendered against him for two hundred and fifty-two dollars eighty cents, and a scire facias ordered against appellant returnable to the next term of the court, to make him a party to the judgment.

It does not appear that a writ of scire facias issued against appellant, but Drillinger, administrator, made an affidavit of the non-residence of appellant, on the 18th of September, 1861, in the Champaign circuit court, and thereupon, after giving bond, sued out an attachment against the estate of appellant, which was levied by the sheriff on the premises in question.

At the following December term, proof of notice of these proceedings by publication in a newspaper of the county was duly made, and the defendant, appellant here, being called, made default. Whereupon “It was considered by the court that the plaintiff hath sustained damages by reason of the non-performance of certain promises in the plaintiff's declaration mentioned. It is therefore considered by the court that the said defendant be made party to the original judgment heretofore rendered herein; and it is adjudged by the court that the said plaintiff recover of the said defendant the sum of $252.80, being the amount of the judgment heretofore rendered herein, and also his costs in this behalf expended; and that execution issue therefor. And it is further ordered that a special execution issue herein against the property heretofore attached herein.”

Appellant contends that these proceedings are void for want of jurisdiction of the court, both of the person and of the subject matter of the suit; and also that the description of the land under the levy, and all subsequent proceedings under the attachment, are void for want of certainty.

To establish the first proposition, appellant refers to the proceedings in the suit first commenced by Drillinger, administrator of Cowden, against Springer and appellant, by which it appears a scire facias was awarded to make appellant a party to the judgment, and that the proceedings by attachment, which could be issued only in aid of that scire facias, could not be made to perform the office of a scire facias, and thereby make appellant a party to the judgment. He insists, as these proceedings were not entitled in aid of the original suit, the court had no jurisdiction to entertain it--that the plaintiff in the first suit must obtain personal service of the scire facias before he can sue out an attachment.

But appellee's counsel insist they were in aid, and were so taken and understood by the court in rendering judgment, as the judgment makes appellant a party to the original judgment in the action of assumpsit, and determines the amount of the recovery by that judgment.

The question then would arise, is a party in appellant's position subject to proceedings by attachment, who has not been personally served with a writ of scire facias?

What is the object of this suit? It is to make known to a defendant that a judgment has been rendered against his co-defendant in the action named, and he must appear and show cause why he should not be made a party to that judgment. It is indispensable, to effect this, that the defendant not served originally should have personal notice by service of the writ. This objeet can not be accomplished by attachment proceedings in which there is no personal service. Service of the writ by levy on property gives the court jurisdiction of the property only. To acquire it over the person there must be actual, or constructive notice by publication. If by the latter, it is apparent a defendant may never have knowledge of a judgment against his co-defendant, and if the notice does not name the original suit, it...