Hichins v. Lyon
| Decision Date | 30 April 1864 |
| Parties | CORNELIA R. HICHINS et al.v.ISAAC R. LYON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR to Circuit Court of McHenry County.
Suit commenced in the court below by plaintiffs in error against defendants in error by writ of attachment, the amount claimed in the affidavit for the writ, and in the ad damnum clause of the declaration being $123, and the defendants below being alleged in said affidavit to be nonresidents of this state. The record did not contain any publication notice, nor any sheriff's return of service upon said defendants, or that they were not found. Judgment by default was entered for the plaintiffs and against the defendants for $132.46.
The assignments of error were: (1) The rendition of judgment, in the absence of personal service upon or appearance by defendants, for more than was claimed in the affidavit; (2) The rendition of judgment for more than the sum laid in the ad damnum clause; (3) The rendition of judgment in said cause, upon publication notice, without a return of “not found.”
Knox & Reed, for plaintiffs in error.L. S. Church, for defendants in error.
A judgment should not be rendered in an attachment suit for a greater sum than is claimed by the affidavit where there is no appearance by the defendant or personal service of the writ (12 Ill., 198), nor should it exceed the ad damnum of the plaintiffs' declaration. Breese, 174; 3 Scam., 347; 2 Gilm., 375; 19 Ill., 46; 22 Id., 287; 24 Id., 197; 27 Id., 293.
We are of the opinion that a return of non est inventus is not necessary to authorize the rendition of a judgment under the provisions of the act of February 12, 1857. Laws of 1857, p. 51.
Reversed and remanded.
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...and cites, in support of this proposition, the following cases: Henrie v. Sweasey, 5 Blackf. 273; Rowley v. Berrian, 12 Ill. 198; Hichins v. Lyon, 35 Ill. 150; Hobson v. Emporium Co., 42 Ill. Forsyth v. Warren, 62 Ill. 68; Fellows v. Dickens, 5 La. Ann. 131; Tilton v. Cofield, 2 Colo. 392. ......
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