Hartung v. Hartung
| Decision Date | 30 November 1880 |
| Citation | 8 Ill.App. 156,8 Bradw. 156 |
| Parties | JOHN C. HARTUNGv.LOUISE HARTUNG. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding. Opinion filed January 18, 1881.
Mr. IRA M. MOORE, for plaintiff in error; that the decree is void for want of proper service upon the defendant, cited Pennerger v. Neff, 5 Otto, 714; Abbott v. Sheppard, 44 Mo. 273; Webster v. Reid, 11 How. 459; Hollingsworth v. Barbour, 4 Pet. 475; Leslie v. Fischer, 62 Ill. 118; Cooper v. Reynolds, 10 Wall. 308; Picquit v. Swan, 5 Mason 35; Bliss v. Heasty, 61 Ill. 338; Kilburn v. Woodworth, 5 Johns. 37; Robinson v. Ward, 8 Johns. 86; Jones v. Spencer, 15 Wis. 583; Manchester v. McKee, 4 Gilm. 511; Conn v. Caldwell, 1 Gilm. 531; Buckmaster v. Grundy, 3 Gilm. 626; Miere v. Brush, 3 Scam. 21; Thurber v. Blackbourne, 1 N. H. 245; Eaton v. Badger, 23 N. H. 228; Minton v. Taylor, 28 Mo. 82; Smith v. McCutchen, 38 Mo. 415; Cooper v. Smith, 25 Iowa, 269; Dawance v. Preston, 18 Ia. 396; Vescher v. Vescher, 12 Barb. 647; Borden v. Fitch, 15 Johns. 121; McGeffert v. McGeffert, 31 Barb. 69; Maguire v. Maguire, 7 Dana 181; Hill v. Hill, 28 Barb. 23; Lyon v. Lyon, 2 Gray 367; Hull v. Hull, 2 Strobh. 174.
The summons or advertisement should appear in the record, so that the court may determine whether the statute has been complied with or not: Randall v. Sanger, 16 Ill. 27; Vairin v. Edmonson, 5 Gilm. 270; Townsend v. Townsend, 21 Ill. 540; Herdman v. Short, 18 Ill. 59.
Mr. J. C. THOMPSON, for defendant in error; that the circuit court is a court of general jurisdiction, and all presumptions are in favor of its jurisdiction, cited Isett v. Stuart, 80 Ill. 404; F. & M. Ins. Co. v. Buckles, 49 Ill. 482; Wallace v. Cox, 71 Ill. 548; Kerr v. Stransberger, 71 Ill. 303.
The decree shows that service was duly had in pursuance of the statute: Pierce v. Carleton, 12 Ill. 358.
To obtain a reasonable support and maintenance, defendant in error commenced this suit in equity. Her husband having left the State, and being unable to obtain personal service upon him, she filed with her bill the following affidavit:
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¦“STATE OF ILLINOIS, ¦)¦ ¦
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¦ ¦)¦ss.¦
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¦Adams county, ¦)¦ ¦
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Personally appeared before me, the undersigned, one Louisa Hartung, who, on her oath, after being duly sworn, deposes and says that she is the complainant in the foregoing bill of complaint, and that she has heard the same carefully read over to her, and that the matters and things therein stated are true in substance and in fact; and affiant further says that John C. Hartung, defendant in said bill of complaint, is not now a resident of this State; that he left his home and the State of Illinois in the month of June, A. D. 1878, and has never returned to the same from that time to the present; that affiant has no knowledge of the whereabouts of said John C. Hartung, except what one Anton Binkert informed her. Said Binkert informed affiant that said defendant had gone to the Hot Springs, in the State of Arkansas, as said John C. Hartung had informed him; and further this affiant saith not.
LOUISE HARTUNG.”
The only question we deem necessary to pass upon in this case is, whether the foregoing affidavit is a sufficient compliance with the statute to give jurisdiction to the court below over the person of the plaintiff in error, to justify any decree being rendered against him.
The statute which authorizes publication to be made against non-resident or absent defendants in chancery proceedings, provides that “Whenever any complainant or his attorney shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this State, or on due inquiry cannot be found, or is concealed within this State so that process cannot be served upon him, and stating the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county.” * * * Revised Statutes of 1877, page 185.
The affidavit under consideration is fatally defective. To comply with the requirements of the statute, the affidavit should aver in the language of the statute, “that upon diligent inquiry the place of residence of the defendant could not be ascertained;” or it should give the facts connected with the inquiry, so that the court could readily determine that diligent inquiry had been made by the affiant, and that upon such inquiry the residence of the defendant could not be ascertained.
In this affidavit no averment in the language of the statute...
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