Mcnab v. Bennett

• Decision Date: 30 September 1872
• Citation: 66 Ill. 157,1872 WL 8529
• Parties: PETER MCNABv.REBECCA BENNETT,PETER MCNABv.REBECCA BENNETT,
• Court: Illinois Supreme Court

66 Ill. 157

1872 WL 8529 (Ill.)

PETER MCNAB

v.REBECCA BENNETT,PETER MCNAB

v.REBECCA BENNETT,

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Livingston county; the Hon. CHARLES H. WOOD, Judge, presiding.

Mr. CHARLES J. BEATTIE, for the appellant.

Mr. L. E. PAYSON, for the appellee. Mr. JUSTICE THORNTON delivered the opinion of the Court:

These cases present the same questions, and have been argued together.

While the process of the criminal law may have been grossly abused, and the rights of appellant greatly outraged, we can give no relief for the former upon this record. For the one, he has ample remedy, in the recovery of damages, by an appropriate action; and for the other, he may still be allowed to make his defense in the mode permitted by the law.

The motions to dismiss the suits for want of jurisdiction were not supported by any affidavit, and no defects were pointed out, and none are apparent upon the face of the papers. Even if the question could have been raised by motion, the court did not err in striking the paper from the files, because it was not informed, in any proper manner, as to the truth of the extrinsic matters alleged in the written motion.

Motions to dismiss, which assume the office of a plea in abatement, will not be entertained unless the objection appears upon the face of the papers. If other objections have to be considered, they must be presented by plea in abatement, so that an issue of fact can be made and tried. Otherwise, questions, upon the determination of which important rights might depend, would be disposed of in the most summary manner. Holloway v. Freeman, 22 Ill. 197.

But it is said that the defendant could not have pleaded in abatement, for the reason that he was found and served with process in the county where the court was held.

A plea in abatement, which would not have been subject to demurrer, could have been framed. The facts alleged are, that the plaintiff fraudulently caused complaint to be made, charging the defendant with a crime, and fraudulently caused the issue of a warrant, and his arrest, without any ground, for the purpose of forcibly taking him from the county of his residence to another county, and there having the civil process served upon him.

Was the defendant “found” in the county where service was had, within the meaning of the statute? It provides as follows: “It shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides or may be found,” etc. If a man voluntarily leaves his residence, and goes to another county, or if seized, when properly chargeable with crime, and taken to another county, he might be said to be found there, within the sense of the word as used in the statute; but it would be a base and utter perversion of the object of the law to permit an arrest upon false and fraudulent pretence, and the abduction of a man, for the sole purpose of obtaining service in a civil proceeding. If this were allowed, the statute would be no protection against the machinations of bad men, who are willing to prostitute their oaths for selfish purposes, and use criminal process for private ends. Under the facts, the defendant was not found in the county; he was entrapped there.

The other error assigned is the refusal of the court to set aside the default. In support of the motion to vacate the judgment, affidavits...