Harmison v. Clark

• Decision Date: 31 December 1834
• Citation: Harmison v. Clark, 1 Scam. 131, 2 Ill. 131, 1834 WL 2585 (Ill. 1834)
• Parties: NATHANIEL HARMISON, plaintiff in error,v.REUBEN CLARK, JACOB CLARK, Senr., and LUCY CLARK, his wife, and JACOB CLARK, Jr., defendants in error.
• Court: Illinois Supreme Court

1 Scam. 131

2 Ill. 131

1834 WL 2585 (Ill.)

NATHANIEL HARMISON, plaintiff in error,

v.REUBEN CLARK, JACOB CLARK, Senr., and LUCY CLARK, his wife, and JACOB CLARK, Jr., defendants in error.

Supreme Court of Illinois.

December Term, 1834.

THIS is an action of trespass instituted by Harmison against the above named defendants, together with Hiram Clark and Abraham Clark. Upon the two last no service of process was had, nor was there any appearance entered by them. The declaration contained, as at first filed, two counts, the first of which charged that on the 11th of March, 1832, with force and arms, at the county of Franklin, the defendants broke and entered the close of the plaintiff, and set fire to, and burned and destroyed one mill-house, one barn, two corn-cribs, one stable, 1,000 bushels of corn, one wagon, etc., of the value of $1,000, and other wrongs, etc.

The second count charged that on the same day and year, and at the same county, the defendants, with force and arms, set fire to, burned down, and destroyed other, the property of the plaintiff, of the value of $1,000, and other wrongs, etc.

At the term to which the writ was returnable--it having been returned as executed upon the defendants Reuben, Jacob, Jr., Jacob, Sr., and Lucy, his wife, the defendants in this writ of error--the Court granted a rule requiring the defendants to plead by 9 o'clock of the next day. This rule was granted and entered of record the 3d of October, 1832. Accordingly, on the next day, the 4th of October, the defendants, Reuben, Jacob, Jr., and Jacob, Sr., filed their plea of not guilty, upon which plea issue was joined the same day.

At the April term, 1833, of the Circuit Court, to which term the cause had been continued on motion of the plaintiff, a judgment by default was taken against Lucy Clark and Jacob Clark, Sr., her husband, for their default in not pleading or otherwise answering on behalf of Lucy, to the plaintiff's action, and a jury was called and sworn to try the issue joined, and to inquire of damages against Jacob Clark, Sr., and Lucy, his wife. The jury returned a verdict of not guilty as to the issue, and assessed the damages against Jacob Clark, Sr., and Lucy his wife, to $360.

On the trial before the jury, it appeared that the burning of the property charged, took place in Hamilton county, and the Court, on motion of the defendants, excluded the evidence from the jury, as to all of the defendants who were on trial. To this decision the plaintiff excepted.

On the next day, the 4th of April, and before judgment was entered on the assessment of damages, against the defendants in default, Jacob Clark, Sr., one of those defendants, made and filed his affidavit, setting forth in substance that he had understood from the sheriff, when at his house to serve process on himself, that his wife, Lucy, was not included in the suit; that he, the affiant, did not then, or at any time, know that his wife was a party to the suit; that no rule or notice was ever served on him of any description, by which he supposed his wife was a party to the suit, nor did he believe his wife was ever summoned by the sheriff, or knew in any manner that she was a party to the suit, or required to plead or attend to the trial. The affidavit further stated that the affiant was informed by counsel since the trial of the suit, and believed, that his wife had a good and meritorious defense, and that she would be able to show on a trial of the merits of the case, that she was in no wise guilty of the trespasses complained of. That he was expressly informed and believed, that his information came from the plaintiff, that the suit had been compromised on the part of the other defendants, and that consequently he was released from all liability in the action. That at the last term of the Franklin Circuit Court, the plaintiff sued the affiant and others, not including the wife of the affiant, and he, the affiant, expressly understood that it was upon this last suit that he was bound to answer, and that Harmison had abandoned the first.

Upon this affidavit of Jacob Clark, Sr., he, and his wife Lucy, moved the Court to set aside the judgment of defaultrendered, and the proceedings had.

The plaintiff resisted the motion, and on its hearing offered to read to the Court the affidavits of Warrenton L. Duncan and Wm. Dye, the first of which asserted the service of summons on Lucy Clark, as returned by the affiant, and that the return was literally and in every respect true. That he never gave Lucy Clark, nor her husband, to understand that the former was not sued, or that the suit was compromised. That, furthermore, both of these defendants had acknowledged to the affiant that they were summoned and that they knew it. The affidavit of Foster and Dye sets forth that they, the affiants, were present on Friday morning, the 5th of April, (the day after the motion and affidavit were made and filed,) and heard Jacob Clark, Sr., and his wife, admit that the summons in this case had been served on the latter by the sheriff of Franklin county, previous to the October term, 1832, but that knowing that he had not served a certain capias, issued during that term, at the suit of Harmison, against the same parties, they, Clark and his wife, meant that he had not served that capias.

These affidavits the Court refused to hear, and upon the affidavit of Jacob Clark, Sr., set aside the default and verdict, and granted a new trial as to all of the defendants, as well those who had pleaded as those against whom the default had been taken.

To both of these decisions the plaintiff's counsel excepted.

The cause was then continued until the next succeeding term of the Circuit Court, at which term, by leave of ...