Miller v. Handy
| Citation | 40 Ill. 448,1866 WL 4511 |
| Parties | JOHN MILLERv.HENRY H. HANDY. |
| Decision Date | 30 April 1866 |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago: the Hon. VAN H. HIGGINS, Judge, presiding.
This was an action of ejectment instituted in the court below by Henry H. Handy against John Miller. A trial resulted in a finding and judgment for the plaintiff. The cause is brought to this court by the defendant, by appeal. The opinion of the court contains a sufficient statement of the case.
Messrs. WALKER & DEXTER, for the appellant.
Messrs. BORDEN & SPAFFORD, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:
We shall consider but one or two of the questions made on this record, as a decision upon them will dispose of the case. The action was ejectment brought by Henry H. Handy against John Miller, the plaintiff claiming the premises in virtue of deeds of conveyance from the heirs at law of Henry S. Handy to him. Henry S. Handy claimed the same, through one Samuel Ressique, who had purchased the land of the United States.
The defendant claimed to hold the premises as tenant of John Ferguson, who claimed the same in virtue of certain proceedings by scire facias against Henry S. Handy in his lifetime, to foreclose a mortgage he had executed on the premises, to Brewster, Solomon & Company.
The proceedings were commenced in the Cook Circuit Court at the August Term, 1838. The judgment was entered at November Term, 1839.
The first writ which issued, was substantially as follows, after stating the venue in the margin: Of the August Term of the Cook county Circuit Court, in the year one thousand eight hundred and thirty-eight. The people, etc., to the sheriff of Cook county, greeting: Commanding the sheriff that he make known to the said Henry S. Handy, if he be found, etc., that he is required to appear before the Circuit Court for Cook county on the third Monday in August next, at the court-house in Chicago, on the first day of the term thereof, etc. This writ was dated August 1, 1838, and was returned “not found.”
The appellee insists this writ was void, and in this he is sustained by the decisions of this court in the case of Calhoun v. Webster et al., 2 Scam. 221; Hildreth v. Hough et al., 20 Ill. 331, and Elee v. Wait, 28 Id. 70. The word “next” refers to the month, and not to the Monday, and more than one term of the court intervening the teste and the return day, the writ was a nullity. This is well settled. By no rational construction can this writ, in the light of those decisions, be made good.
It appears from the record, that appellant introduced in evidence an alias writ of sci. fa. returnable to the March Term, 1839, which was also returned “not found,” and a judgment was rendered thereon. The appellant also introduced in evidence, a judgment entered against Handy at the November Term, 1839, on an alias writ returnable to that term. Why two judgments were rendered in the cause does not appear; the question before us is, as to the effect of this last judgment rendered at the November Term, 1839.”
That judgment recites that plaintiffs appeared by their attorney, and defendant made default,
The court finds, that two writs of scire facias had been returned “ nihil. ...
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