Leitch v. Colson
| Decision Date | 31 March 1881 |
| Citation | 8 Bradw. 458,8 Ill.App. 458 |
| Parties | JOHN B. LEITCH, Impl'd,v.CHARLES D. COLSON. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed April 7, 1881.
In January, 1877, DeWolf, then a justice of the peace, issued a summons in a suit wherein appellee, Colson, was plaintiff, and appellants, Leitch and Bernard Kelly, were defendants.
The summons was returned by the constable served on both defendants, and on the return-day, the defendants not appearing, judgment was entered in favor of the plaintiffs against both defendants for $132.90. Several executions were issued against both defendants, which were returned not satisfied; also one dated January 29, 1880, which has never been returned.
February 14, 1880, Hammer, as successor in office to DeWolf, issued a writ of scire facias, at the instance of appellee, against appellant, Leitch, requiring him to show cause why he should not be made a party to said judgment. The writ recited, that on January 22, 1876, said Colson recovered a judgment against Bernard Kelly, impleaded with J. B. Leitch, etc.
On the return day of the writ the parties appeared, when appellee filed a paper, which is as follows:
The justice, on motion of appellant, dismissed the scire facias, and Colson appealed to the Superior Court, where Leitch renewed his motion to dismiss, on various grounds; among others, that there was no record on which to base the writ; that it does not appear from the record in said cause that Leitch was not served with the original process in said cause; and that there was no authority in the law for the issuing of said writ by the justice.
The court being of the opinion that the plaintiff in the scire facias might introduce parol evidence to show that the original summons was not served, overruled the motion to dismiss, and upon the trial without a jury, admitted parol testimony against the objection of appellant, tending to show that the original summons was not served on appellant.
The court rendered a judgment in favor of appellee against Leitch for $132.90, and the latter brings the case here by appeal and assigns various errors.
Mr. PERRY A. HULL, for appellant; that a justice has no jurisdiction except as conferred by statute, cited Evans v. Pierce, 2 Scam. 468; Robinson v. Harlan, 1 Scam. 237; Clark v. Holmes, 1 Doug. 390; Moore's Treatise, § 27.
Scire facias can be issued only where all of the defendants have not been served with process: Rev. Stat. Chap. 79, § 41.
Jurisdiction of the person can be acquired only by the mode prescribed by law, or by appearance: Clark v. Holmes, 1 Doug. 390; Goudy v. Hall, 30 Ill. 109; Bines v. Proctor, 4 Scam. 174; Evans v. Pierce, 2 Scam. 468.
The jurisdiction of the Superior Court on appeal was no greater than that of the justice: Allen v. Belcher, 3 Gilm 594; The People v. Skinner, 13 Ill. 287; Pelt v. Pelt, 19 Wis. 197.
Parol evidence is not admissible to contradict a record: C. & R. I. R. R. Co. v. Whipple, 22 Ill. 106; Garfield v. Douglass, 22 Ill. 100; Zimmerman v. Zimmerman, 15 Ill. 84; Brintnall v. Foster, 7 Wend. 104; Thatcher v. Mæck, 7 Bradwell, 635; Davis v. Dresback, 81 Ill. 393.
A scire facias is not an original action: Ryder v. Glover, 3 Scam. 547.
Parol evidence is not admissible to contradict a constable's return in the same suit in which the return is made: Wilson v. Greathouse, 1 Scam. 174; Fitzgerald v. Kimball, 86 Ill. 396; Case v. Redfield, 7 Wend. 399; Hunter v. Stoneburner, 92 Ill. 79; Owens v. Ranstead, 22 Ill. 161.
Mr. C. W. COOPER and Mr. D. S. GOODING, for appellee.
The only question arising on this record which it is necessary to consider, relates to the admissibility of parol evidence to contradict the constable's return.
Section 41, chapter 79, Rev. Stat., provides that if a summons is served on one or more but not on all the defendants, the plaintiff may proceed to trial, judgment and execution against the defendants served, and the justice shall, on application of the plaintiff, issue another summons in the nature of a scire facias against the defendants not served, requiring them to appear and show cause why he or they should not be made parties to the judgment. The statute is at once the source and the limit of the justice's authority, and which he cannot transcend without rendering his acts invalid. The language of the section quoted is plain and unambiguous. A justice of the peace can issue a scire facias only when one or more of the defendants have not been served with process. When all the defendants have been served, and judgment is rendered against them, the object and purpose of the statute have been accomplished, and there remains neither the necessity nor the authority for proceedings by scire facias.
In the present case it is not disputed that the constable returned the original summons served on both the defendants, and the record of the justice shows that judgment was rendered against both. After the return not satisfied of several executions issued on the judgment, the plaintiff, without making any preliminary proof of the falsity of the return on the original summons, or laying any other foundation therefor, sued out a scire facias against appellant, and upon the trial was allowed by the court to prove by parol that the return was untrue. This ruling was clearly erroneous.
It has been settled in this State by a long line of decisions that the return of a sheriff or constable is, as between the parties, conclusive in the same suit, and cannot be...
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