Kenney v. Greer

• Decision Date: 31 December 1851
• Citation: 13 Ill. 432,3 Peck 432,1851 WL 4369,54 Am.Dec. 439
• Parties: JAMES KENNEY and wifev.WILLIAM GREER.
• Court: Illinois Supreme Court

13 Ill. 432
1851 WL 4369 (Ill.)
54 Am.Dec. 439
3 Peck (IL) 432

JAMES KENNEY and wife
v.
WILLIAM GREER.

Supreme Court of Illinois.

December Term, 1851.

THIS was an action of ejectment by appellants against appellee, at March term, 1851, of Pike county court.

Declaration and notice served 29th of March, 1851, for the following premises, in Pike county, Illinois: “a piece or parcel of

[13 Ill. 433]

land in the town of Griggsville, commencing at a stone eleven chains seventy-five links south, eighty-nine and one-half east from corner of sections 14, 15, 22, 23, and running south eighty-nine and one-half east, eight and fifty-hundredths chains to a stone, thence south six and seventy-five hundredths chains to a stone, thence north eighty-nine and one-half west, eight and fifty-hundredths chains to a stone, thence north six and seventy-five hundredths chains to the place of beginning, containing five and seventy-one hundredths more or less, in town 4 south, range 3 west, fourth principal meridian.”

Plea, not guilty, filed, and joinder thereon.

At October term, 1851, jury sworn to try cause; verdict, under instructions of court, for defendant.

Motion for new trial. Motion overruled, and judgment against plaintiffs for costs. Bill of exceptions taken. Appeal prayed and allowed.

Bill of exceptions admits possession of defendant, at the time of service of declaration, of premises described above. Admits that James A. Kenney, one of appellants, is husband of Mary Kenney, the other appellant. Admits that, at the time of rendition of judgments, making of copy and execution of sheriff's deed, hereinafter set forth, Uriah Brown, the defendant in said judgment and execution, was the owner in fee-simple of premises described in plaintiff's declaration; and that plaintiff then offered in evidence a record of circuit court, Pike county, Illinois, in a suit therein, wherein Thomas G. Little was plaintiff, and Uriah Brown, aforesaid, was defendant, in which suit judgment was rendered against said Brown.

1. Summons to sheriff of Schuyler county, with return of service, by reading to Brown, by sheriff of Schuyler county, on 22d August, 1843.

2. Declaration in said cause on seven promissory notes.

3. At September term, A. D. 1843, of said Pike circuit court, the following judgment was rendered in said cause:

+-------------------------+
                ¦THOMAS G. LITTLE ¦)¦ ¦
                +-----------------+-+-----¦
                ¦v. ¦)¦Debt.¦
                +-----------------+-+-----¦
                ¦URIAH BROWN. ¦)¦ ¦
                +-------------------------+
                

This day came the plaintiff, by his attorney, and the defendant, having been duly served with process, and being called and not appearing, but therein making default: It is considered by the

[13 Ill. 434]

court that plaintiff recover of defendant $909, the debt in declaration mentioned, also the damages sustained by reason of non-payment of said debt. And because said damages are unknown, and depend upon computation of interest only, the clerk is ordered to assess the same, who forthwith reports that said damages amount to $156.10, which report, being approved, it is considered that the plaintiff recover of the defendant the damages aforesaid, also his costs.

The plaintiff then offered in evidence an execution in the usual form issued upon said judgment to the sheriff of Pike county, on 13th June, 1848, and the levy thereon, indorsed by said sheriff, on 15th June, 1848, on the premises described in said declaration in ejectment herein, as property of Uriah Brown, the defendant in execution. Also indorsement and return by said sheriff on said execution of sale of premises hereinbefore described to Mary Kenney, one of appellants, for $65.65, on September 9, 1848.

The court, on motion of defendant's counsel, refused to permit said judgment, execution, levy and sale thereon, to be read in evidence before the jury, and excluded the same, to which several opinions and decisions of the court in refusing to permit said plaintiff to read said judgment, execution, levy and sale thereon, in evidence to the jury, and in excluding the same from the jury, plaintiff then and there excepted.

Plaintiff then offered in evidence a deed, with the certificates thereon indorsed, for the premises described in plaintiff's declaration from Daniel D. Hicks, sheriff of Pike county, aforesaid, to Mary Kenney, one of the appellants, in the usual form, dated August 12, 1850, reciting the rendition of the foregoing judgment to Uriah Brown, and the execution, levy and sale, hereinbefore set forth; said deed was duly acknowledged, and was recorded in recorder's office of Pike county, aforesaid, on 12th of August, 1850.

J. GRIMSHAW and R. S. BLACKWELL, for appellants.

Facts. This was an ejectment by plaintiffs in error against defendant in error for a parcel of land in Griggsville, Illinois. On

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the trial, plaintiffs, to show title, offered the record of the Pike circuit court, September term, 1843, in the case of Thomas G. Little v. Uriah Brown, which was an action of debt $909, damages $600. Summons was directed to sheriff of Schuyler, and there duly served on Brown. Declaration counts on eight promissory notes, and avers that the cause of action accrued in Pike, but makes no averment that plaintiff resided there. Brown made default, and judgments for $909 debt and $146.10 damages, which recites due service of process. An execution issued regularly, levied on the land in controversy. Sold to Mary Kenney, one of the plaintiffs in this suit. Sheriff's deed duly executed. At the time of the judgment, levy and sale, Brown was the owner in fee. Defendant in possession when suit commenced. Judgment for defendants.

The question is whether the judgment in Little v. Brown is void for want of jurisdiction in the circuit court of Pike county?

It is admitted that, to constitute a valid judgment, it must have been rendered by a tribunal having jurisdiction of the subject-matter of the suit and over the person of the defendant.

A court has jurisdiction of the subject-matter where, by law, power and authority are conferred upon it to hear and determine the particular cause of action in controversy between the parties to the suit. And it has jurisdiction of the person of the defendant when he voluntarily appears to the action, or is personally served with process, or has constructive notice of the pendency of the suit. Gilman v. Thompson, 11 Verm. R. 648.

There is no pretense but that the circuit court in this instance had jurisdiction of the subject-matter. The statute expressly confers upon the court power to hear and determine “all matters and suits at common law and in chancery arising in each of the counties in their (the judge's) respective circuits, where the debt or demand shall exceed $20.” Rev. Laws, 1833, pp. 151, 152, § 18.

And the court acquired jurisdiction over the person of the defendant by the service of process upon him. Kennedy et al. v. Georgia State Bank, 8 How. U. S. Rep. 611.

It is true the court acquired this jurisdiction irregularly, and

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its judgments might have been reversed upon writ of error or appeal; but it can not be impeached collaterally.

The act of December 20, 1828, provides “that hereafter it shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides or may be found, except where the debt, contract or cause of action accrued in the county of the plaintiff, or where the contract may have specifically been made payable,” etc. R. L. 1833, p. 145.

This privilege of the defendant is not strictly the subject of a plea to the jurisdiction of the court, but is rather to be classed among pleas in abatement to the person of the defendant. Harrison v. Rowan, Peters, C. C. R. 489; Logan v. Patrick, 2 U. S. Cond. R. 259; Cleveland v. Welsh, 4 Mass. R. 591; Hughes v. Martin, 1 Ark. R. 463.

It was never intended as an exception to the general grant of jurisdiction, conferred upon the circuit court by R. L. 1833, p. 151, § 18.

The object of the act was to restrain a previous practice which had obtained, of sending process from one county to another to bring the defendant into a county where he did not reside, and was productive of much oppression. Brewster v. Scarborough, 2 Scam. 282.

According to the rules of pleading, and the practice of the superior courts of England, a plea to the jurisdiction, or in abatement, on account of the infringement of the personal privilege of the defendant, was necessary to raise the objection. 1 Chit. Pl. 441-445; Wood v. Mann, 1 Sumn. R. 578; Hughes v. Martin, 1 Aik. R. 463; Cleveland v. Welsh, 4 Mass. R. 591.

This was the established practice in every superior court. But our court departed from it, and laid down the rule, which has ever since been adhered to, that, to authorize the court to issue its process to a foreign county, there should be an averment in the declaration “that the cause of action accrued in the county where the suit is brought, and that the plaintiff resided there.” Clark v. Harkness, 1 Scam. 56.

This case was founded upon the authority of Turner v. Bank of North America, 4 Dall. R. 8, in which case Ellsworth, C. J., treated it as a technical question, and said, “It is exceedingly to

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be regretted that exceptions which might be taken in abatement, and often cured in a moment, should be reserved to the last stage of a suit, to destroy its fruits.”

The soundness of the practice of this court has been questioned in a recent decision in Haddock v. Waterman, 11 Ill. R. 477, 478. CATON, C. J., says, “were the questions before us for the first time, we might and probably should follow the rule indicated in the case of Foot v. Stevens, 17 Wend. 483, and hold that none of these averments were necessary, upon the familiar principle that every presumption is in favor of the jurisdiction and proceedings of superior courts of general jurisdiction.”

This was the doctrine of the court of king's bench in England, where the question arose upon writ of error. Peacock v. Bell, 1...