Greer v. Young

• Citation: 11 N.E. 167,120 Ill. 184
• Parties: GREER v. YOUNG.
• Decision Date: 22 March 1887
• Court: Illinois Supreme Court

120 Ill. 184

11 N.E. 167

GREER

v.YOUNG.

Supreme Court of Illinois.

March 22, 1887.

Error to appellate court, First district.

Dent, Black & Cratty Bros., for plaintiff in error.

Clifford, Anthony & Paulson, for defendant in error.

MULKEY, J.

Robert C. Greer on the twenty-third of July, 1884, commenced an action of assumpsit in the superior court of Cook county against George Young. A summons in the usual form, returnable on the first Monday of the following month, was served on the defendant, and due return thereof made by the sheriff of Cook county on the same day. On the fourth of August, 1884, the plaintiff filed in the cause a declaration in the usual form, containing the common counts only. On the eighteenth of the same month the defendant filed, by his attorneys, a special appearance in the case, ‘for the purpose only of moving to quash the writ of summons and dismiss the suit.’ On the nineteenth of the same month the defendant filed a written motion in the cause ‘to quash the service of the writ of summons,’ for the reason, as is alleged in the motion, ‘that the defendant is a non-resident of the state of Illinois, and, at the time of said service, was within the jurisdiction of this court for the purpose of attending legal proceedings, and for no other purpose.’ This motion was supported by an affidavit of the defendant, showing, in substance, that both the plaintiff and the defendant were residents of Missouri; that the plaintiff, prior to the commencement of the present suit, had brought an action against the defendant in the circuit court of La Fayette county, in the state of Missouri, ‘for the identical cause of action for which this suit is brought,’ and that said former suit was still pending and undetermined in the state of Missouri; that, in defending said last-mentioned suit, it became necessary to take depositions in Chicago, and that, under the instructions of his attorneys, he went to Chicago for the sole purpose of assisting his said attorneys in taking said depositions; that shortly after the taking of the same, and while in the office of his attorneys consulting with them as to the probable effect of the depositions, the sheriff made service of the summons upon him in the present case.

Upon consideration of the facts set forth in the affidavit, the superior court sustained the motion to quash the service, and entered an order dismissing the suit, which was affirmed by the appellate court for the First district. The case is brought here by plaintiff in error on a certificate of the appellate court, and a reversal of the judgment of affirmance is asked on a number of grounds. It is first contended that, as the defense was of a dilatory character, it should have been made at the very earliest opportunity, which it is claimed was not done. Of the correctness of the rule of law suggested there can be no question, but whether the motion was made at the earliest opportunity is a question of fact that may be materially affected by the rules of the court where the action was pending, of which this court cannot take judicial notice; and, as all presumptions are to be indulged in favor of the correctness of the rulings of that court, in the absence of anything to the contrary, we are not fully prepared to say that the motion was not made in time, though it must be confessed the objection is not without force. However this may be, we prefer to place our decision upon other grounds. The most important question in the case is whether the circumstances shown, even if properly pleaded in due time, warranted the court in setting aside the service of the process, and dismissing the suit. There is clearly no ground for the claim that the plaintiff or his counsel had any agency in inducing the defendant to leave Missouri, and go to Chicago, for the purpose of having process served on him in the latter place. In other words, it is not claimed, nor is there any ground for the claim, that service of process upon the defendant was obtained by any artifice, trick, or fraud on the part of the plaintiff, his counsel, or any one else acting in his interest. The question then arises, can one who voluntarily leaves his own state, and comes to this, for the purpose of taking depositions before a notary, be lawfully served, by reading, with civil process while here on such business? The fact that the plaintiff had sued the defendant in Missouri on the same cause of action we do not regard as having any bearing on the question, as it is the settled law in this state that the pendency of a suit in another state cannot be pleaded in abatement of a suit brought here on the same cause of action. McJilton v. Love, 13 Ill. 486;Allen v. Watt, 69 Ill. 655. But, even where the pendency of a suit in a sister state can be made available as a defense at all, it must, by all the authorities, be formally pleaded in abatement, which was not done here. The right of the plaintiff, then, to sue the defendant here, was the same as that of any one else having a claim against him. The ruling of the court, therefore, must be rested entirely upon the privilege or immunity which the common law has, from a very early period, extended to parties and witnesses in a lawsuit while attending court, including going and coming. This rule, as found in all the text-books, and in most of the cases we have examined, is expressly limited to cases of arrest on civil process. 1 Tidd, [120 Ill. 188](1st Amer. Ed.) 174; 3 Bl. Comm. 289, side p. 1; Greenl. Ev. §§ 316, 317; 2 Bouv. Dict. 284.

The rule as laid down in the above works is fully sustained by as almost unbroken current of authority, as is fully shown by the following cases: Meekins v. Smith, 1 H. Bl. 636; Kinder v. Williams, 4 Term R. 378; Arding v. Flower, 8 Term R. 534; Spence v. Stuart, 3 East, 89; Moore v. Booth, 3 Ves. 350; Ex parte Hawkins, 4 Ves. 691; Ex parte King, 7 Ves. 313; Sidgier v. Birch, 9 Ves. 69; Ex parte Jackson, 15 Ves. 117-120.

The above authorities are also valuable as throwing light upon the procedure or practice in cases of this kind. The arrest of a party to a suit by civil process being regarded as a breach of the defendant's privilege, the usual course was to appear in the cause in which the arrest was made, and procure a rule against the plaintiff and his attorney to show cause why the defendant should not be discharged out of custody by reason of his alleged privilege, upon his filing common bail. The rule to show cause was always supported by affidavit setting up the fact of the arrest, and attendant circumstances. On the hearing the rule, depending upon the proofs, was either made absolute or discharged. If the former, the defendant, upon filing common or nominal bail, was discharged. And, if he had given special bail, the bailbond was ordered to be surrendered and canceled. Nevertheless the defendant was in court, and was bound to answer to action. While, as we have just seen, the exemption, by the general current of authority, applies only to arrests, yet in some of the states, notably in New York, it has been extended to cases of service by summons merely, particularly where the defendant is a non-resident. Person v. Grier, 66 N. Y. 124;Matthews v. Tufts, 87 N. Y. 568.

No sufficient reason is perceived for departing from the general current of authority on this subject merely because some two or three...