Moore v. Hamilton

• Decision Date: 31 December 1845
• Citation: 7 Ill. 429,2 Gilman 429,1845 WL 3957
• Court: Illinois Supreme Court
• Parties: JOSHUA J. MOOREv.ARTOIS HAMILTON.

2 Gilman 429

7 Ill. 429

1845 WL 3957 (Ill.)

JOSHUA J. MOORE

v.ARTOIS HAMILTON.

Supreme Court of Illinois.

December Term, 1845.

ASSUMPSIT, and attachment in aid thereof, in the Hancock circuit court, brought by the defendant in error against the plaintiff in error. The summons in the original proceeding was issued and directed to the sheriff of Peoria county, and being returned “ non est inventus,” an attachment in aid in due form of law was sued out and levied upon the personal and real estate of the defendant below. No personal service was had in either proceeding, nor did the defendant enter his appearance.

The cause was heard before the Hon. Norman H. Purple, at the October term, 1845, when a judgment by default, after proof of publication of notice, was rendered in favor of the plaintiff. The damages were assessed by a jury at $145.74, and special execution was awarded against the property attached.

A. LINCOLN, for the plaintiff in error.

In this case, a personal service was necessary. Rev. Stat. Ch. IX, § 3. The certificate of publication did not authorize the judgment. Constructive notice is insufficient.

M. BRAYMAN, for the defendant in error.

In a bare proceeding in an action of assumpsit, there must be personal service, unless waived by appearance, which is equivalent to it. The law does not provide for constructive service by publication, but in attachment it is otherwise; though there be neither service nor appearance, the defendant may be brought into court by publication. In this case, the action was assumpsit, commenced by summons, aided by an attachment. Rev. Stat. 70, IX, § 30. The issuing of the writ did not abate nor extinguish the original suit, but was engrafted upon it to give it effect, to secure the property of the defendant, and to do that which the summons failed to do, to bring Moore properly into court. The writ of attachment and the proceedings under it, did not lose their relation to, or connection with the original suit, but were so far distinct as to conform to proceedings “required or permitted in original attachments, in all things as near as may be.” See § 30, before cited. Hamilton, having suspended proceedings in the original suit, and sought the aid of the proceedings in attachment, was entitled to its benefit as long as was necessary to secure the remedy sought. The publication, then, was equivalent to service, for according to the law regulating attachments, it brought the defendant within the jurisdiction of the court, so as to authorize judgment against him, and execution against the property attached.

TREAT J.^a1

On the 9th of June, 1845, Hamilton commenced an action of assumpsit in the Hancock circuit court against Moore. The return on the summons was “ non est inventus.” On the 17th of June, Hamilton filed a bond and affidavit, and under the 30th section of the “Act concerning attachments,” approved February 12th, 1833, sued out an attachment in aid of the action of assumpsit. The writ was levied on a tract of land and some personal property. Notice of the pendency of the attachment was regularly given by publication. At the October term, 1845, the default of Moore was entered and the plaintiff's damages assessed at $145.74, for which amount a judgment was rendered, to be satisfied by a sale of the property...