Gilson v. Powers

• Citation: 16 Ill. 355,6 Peck 355,1855 WL 5436
• Parties: GEORGE W. GILSONv.SIDNEY POWERS.
• Decision Date: 30 June 1855
• Court: Supreme Court of Illinois

16 Ill. 355
1855 WL 5436 (Ill.)
6 Peck (IL) 355

GEORGE W. GILSON
v.
SIDNEY POWERS.

Supreme Court of Illinois.

June Term, 1855.

THIS cause was heard before MORRIS, Judge, without a jury, at May term, 1854. The case is stated in the opinion of the court.

T. L. DICKEY and A. HERRINGTON, for Appellant.J. H. FERGUSON, for Appellee.

[16 Ill. 356]

SKINNER, J.

Powers sued Gilson and Hemming-way, in assumpsit, in the Kane circuit court. The summons was returnable to the November term, 1853, and was returned served on Gilson, but no return was made as to Hemmingway.

At the February term, 1854, Gilson appeared, plead to the first count of plaintiff's declaration, and demurred to each of the other counts. The plaintiff demurred to the pleas, and the court sustained the demurrer. The court also sustained the defendant's demurrer to the counts of the plaintiff's declaration demurred to.

The plaintiff obtained leave to amend his declaration. At the succeeding May term, Gilson filed several pleas to plaintiff's amended declaration, and issue to the country was formed by the pleadings. Gilson then entered his motion for a change of venue, on petition verified by affidavit, setting forth that he feared he would not receive a fair trial in the Kane circuit court on account that the inhabitants of said Kane county were prejudiced against him, so that he could not have a fair trial in said court. The court overruled the motion for change of venue, and Gilson excepted.

The parties then put themselves upon the court for trial, and judgment was rendered for the plaintiff. Gilson appeals to this court, and assigns for error, that the court erred in rendering judgment against him without a return of “not found” as to Hemmingway, and that the court erred in overruling his motion for a change of venue.

The statute provides that, “if such summons or capias be served on any one or more, but not on all the defendants, the plaintiff or plaintiffs shall be at liberty to proceed to trial and judgment in the same manner as if all the defendants were in court, and such judgment shall be good and valid against the defendant or defendants on whom the process has been served,” etc. Rev. Stat. 413, Sec. 6. It does not provide that the summons shall first be returned “not found” as to those not served, before the plaintiff can proceed to trial against those as to whom the summons is returned served.

But it is not necessary to decide, under this statute, whether judgment by default can be rendered...