Humphrey v. Phillips

• Court: Illinois Supreme Court
• Writing for the Court: SCOTT
• Citation: Humphrey v. Phillips, 57 Ill. 132, 1870 WL 6593 (Ill. 1870)
• Decision Date: 30 September 1870
• Parties: JOSEPH HUMPHREYv.WILLIAM N. PHILLIPS et al.

57 Ill. 132

1870 WL 6593 (Ill.)

JOSEPH HUMPHREY

v.WILLIAM N. PHILLIPS et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Chicago.

The opinion states the facts.

Messrs. BAILEY & COLE, for the plaintiff in error.

Messrs. GOUDY & CHANDLER, for the defendants in error. Mr. JUSTICE SCOTT delivered the opinion of the Court:

The single question presented in this case arises on the demurrer to the plea in abatement.

The suit was commenced in the Superior Court of Chicago, and the summons was directed to the sheriff of McDonough county, and there served upon the defendant.

The declaration is in assumpsit, and contains three counts. The first count is on a draft payable at sight; the second is a common count, and the third is a count on an account stated. With the declaration was filed a copy of the draft, and the following statement: “Copy of draft sued on, and sole cause of action.”

The plea filed alleges that, at the time of the commencement of the suit, the defendant was a resident of McDonough county, and has been ever since; that he was not found or served with process in the county of Cook, but that he was served with process in the county of McDonough; that the causes of action arose in the county of McDonough, and not in the county of Cook; that the contract upon which the action is brought was not actually made in the county of Cook; and that the same was not, nor any part thereof, made specifically payable in the said county of Cook.

That clause in the plea that alleges that “the cause of action arose in the county of McDonough, and not in the county of Cook,” may be rejected as surplusage. It presents an immaterial issue, under the statute of 1861. That act provides that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except, where there is more than one defendant, then the plaintiff may commence his action in any county where either of them resides, and may have the summons directed to any county where the other defendants, or either of them, may be found. It also provides that the provisions of that act “shall not apply to any case where the plaintiff is a resident of, and the contract upon which the action is brought shall have been actually made in, the county in which the action is brought, nor to any proceeding under the attachment laws of this State.”

The law has always required great accuracy and precision in the structure and form of pleas in abatement. They must be certain to every intent, and if to the jurisdiction of the court, such pleas must, by averment of facts accurately and logically stated, exclude every intendment in favor of the jurisdiction of a court of general and unlimited jurisdiction. The presumption will always be in favor of the jurisdiction of the court, and the pleader must show that the court has not jurisdiction if he would oust it of its jurisdiction. Parsons et al. v. Case, 45 Ill. 296; Diblee v. Davison, 25 Ill. 486. As a general rule, pleas in abatement are not favored by the courts. But the right of a party to be sued in the county where he resides, and have his cause tried there, is statutory, and he ought not to be denied that right--a right to him, in many instances, of the utmost importance--by any technical and metaphysical learning in regard to pleas in abatement. The plea, in this instance, is meritorious in its character, in addition to having its foundation in a statutory right. A plaintiff has no moral or legal right to compel a defendant, through mere capriciousness, or merely for the sake of his own convenience, to go to a distant part of the State to make his defense to any supposed cause of action.

The objections to the sufficiency of the plea in this case, are all, with one exception, of the most technical character.

It is objected that the plea omits the middle initial letter “S,” in the names of two of the plaintiffs. Such an objection is entirely too trivial to be seriously considered by this court. The middle initial letter has never been regarded as any part of the name.

The only seemingly well founded objection that can be taken, arises upon the last averment in the plea, viz: “That the contract upon which the action was brought...