Law v. Grommes

• Decision Date: 11 October 1895
• Citation: 158 Ill. 492,41 N.E. 1080
• Parties: LAW v. GROMMES et al.
• Court: Illinois Supreme Court

158 Ill. 492

41 N.E. 1080

LAW

v.GROMMES et al.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Error to appellate court, First district.

Action of debt by John B. Grommes and Michael Ullrich, copartners as Grommes & Ullrich, against Robert Law. Plaintiffs obtained judgment, which was affirmed by the appellate court. 55 Ill. App. 312. Defendant brings error. Reversed.

Robert Mather, for plaintiff in error.

W. O. Johnson, for defendants in error.

WILKIN, J.

Appellants caused a summons against appellee to issue from the circuit court of Cook county, returnable to its April term, 1891. It was served, as shown by the return, by delivering a copy to the defendant April 10, 1891. The declaration, which counted upon a judgment of the county court of Douglas county, Neb., was not filed until April 11th, one day too late for the April term, and without any other summons, so far as the record shows. Judgment by default was taken at the next term, the judgment reciting, ‘Due service of summons issued in said cause has been had on the defendant for the last ten days before the first day of this term.’ The appellate court affirmed that judgment.

Two questions are raised on this appeal, which in their natural order are: First, is service by copy in a case of this kind sufficient to suthorize a judgment by default? And, second, does the recital in the judgment as to service cure the defective service, on the presumption that another summons was issued and served?

As early as 1855 this court said: ‘The mode of service of summons, where not otherwise provided by statute, is by reading the same to the defendants and each of them, and the return should show the time when, upon whom, and how the service was made. The following form may be adopted in cases where the statute does not otherwise provide: ‘I did on the ___ day of _____, 18__, serve this writ by reading the same to the within-named A. B. Dated ___ day of _____, 18__ C. D., Sheriff of H. C. Ill.’' Ball v. Shattuck, 16 Ill. 299. It is said it was not necessary to the decision of that case to decide how service should have been made, and hence the foregoing language is mere obiter dictum. The question there was whether the return upon the summons was good. It was held bad, and in showing wherein it was defective the foregoing language is used. The statute being silent as to the mode of service in such cases, it was important that some rule should be laid down for the guidance of public officers in the performance of their duty in that regard. And we are unable to see why the decision that service should have been by reading was not properly involved in that case. ‘An expression of opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the cause, if a dictum at all, is a judicial dictum, as distinguished from a mere obiter dictum, i. e. an expression originating alone with the judge who writes the opinion, as an argument or illustration.’ And. Law Dict. 355, citing authorities. We think what was said in Ball v. Shattuck, supra, has the force of judicial determination that in this state service of summons must be made by reading it to the defendant, unless a different mode is prescribed by the statute. It has certainly been so understood by the courts and the profession. The legislature also seems to have acted upon the understanding that generally service is not made by copy, it having expressly provided for that kind of service in particular cases. The language used in Ball v. Shattuck was quoted with approval in Botsford v. O'Conner, 57 Ill. 77. And it was again said in McNab v. Bennett, 66 Ill. 161, “Service,' under our law, means to read the writ to the party.' In the foregoing decisions this court did not attempt to state, as seems to be supposed, the common-law rule as to how summons should be served, but simply placed a construction upon our statute. There is no more authority in the common law for saying service of summons shall be by copy then it must by reading. The most that can be said is that it could have been properly held that in all cases not otherwise provided for by statute service should be by copy. Conceding the correctness of that proposition, we are unable to see why, after so many years of acquiescence in the other construction, it should be changed. It is certainly desirable that some definite and uniform method of service be prescribed, and we know of no hardship or inconvenience resulting from the present well-understood rule which would justify us in changing it. That the return on the summons appearing in this record is insufficient under this ruling to sustain the judgment below is conceded.

2. Is the defect cured by the recital of service in the judgment? It is insisted that inasmuch as the default was not taken until the term next after the one to which the summons appearing in the record was returnable, and the judgment recites due service upon the defendant, it should be presumed ‘that a new summons was issued, served and returned by the sheriff, and has been lost from the files.’ If the attempt here was to attack the judgment below collaterally, the proposition would have force. We think, however, with the appellate court, that even then, under the facts of the case, it could not prevail. But upon what principle it can be availed of in this direct proceeding we are at loss to perceive. Appellant here seeks a reversal of the judgment against him upon the ground that it was rendered without legal service of process. There is before us a transcript of the record of the circuit court, including the summons in the case, showing service by copy certifiedby the clerk ‘to be a true, perfect, and complete copy of a transcript of the record,’ and no objection whatever has been made thereto. It will not be denied that the summons and service is a proper part of the record. Rule 9 of this court (41 N. E. vi.) requires the clerk of the lower court to certify a copy of the process in his transcript of the record. The service, as we have seen, was not sufficient to authorize the judgment by default. There is therefore manifest and reversible error appearing upon the face of the record. ‘Before a court is authorized to render a judgment by default, it must appear clearly and affirmatively, by the return of the officer charged by law with the service of the process, that the defendant has been regularly served.’ Belingall v. Gear, 3 Scam. 576. And the decisions of this court reversing judgments and decrees for want of legal service are numerous. But against this manifest error we are asked to presume that there was no error; that is to say, instead of holding that the circuit court committed an error in holding service...