People ex rel. Brummet v. Moeckel

• Court: Supreme Court of Illinois
• Citation: 256 Ill. 598,100 N.E. 272
• Parties: PEOPLE ex rel. BRUMMET v. MOECKEL et al.
• Decision Date: 17 December 1912

256 Ill. 598

100 N.E. 272

PEOPLE ex rel. BRUMMET

v.MOECKEL et al.

Supreme Court of Illinois.

Dec. 17, 1912.

Appeal from Circuit Court, Jackson County; William N. Butler, Judge.

Proceedings by the People, on the relation of C. E. Brummet, against Julius H. Moeckel and others. From a default judgment for relator, defendants appeal. Affirmed.J. M. Herbert, of Murphysboro, and L. R. Stewart, for appellants.

W. H. Stead, Atty. Gen. (James H. Martin, of Murphysboro, of counsel), for appellee.

COOKE, J.

At the April term, 1912, of the circuit court of Jackson county, the people, on the relation of C. E. Brummet, filed a petition, supported by the affidavit of Brummet, for leave to file an information in the nature of a quo warranto against Julius H. Moeckel to require him to show by what authority and right he was exercising the office of president of the board of trustees of the supposed village of Neunert, in Jackson county, and against Gust Twenhafel, Herman Guetersloh, Henry Zerbst, Fred Otjen, M. Weber, and Theodore Lungwitz to require them to show by what right and authority they were exercising the office of trustees of said supposed village. Upon the filing of this petition, on April 8, 1912, the court entered an order granting leave to file the information and directing that summons issue against the defendants returnable April 22, 1912, being one of the days of the April term of said court. The information was thereupon filed and summons was issued against the defendants returnable April 22, 1912. The defendants were served with summons on April 13, 1912. On the return day the defendants appeared and filed their joint motion to quash the summons on the ground that the issuance, service, and return of summons to the April term of court was in violation of the provisions of the Practice Act. The defendant Julius H. Moeckel assigned as an additional ground for the motion that he had not been served with a true copy of the summons. The motion was sustained as to Moeckel and overruled as to the remaining defendants, and the court ordered an alias summons to issue against Moeckel returnable May 6, 1912, being one of the days of said April term. Moeckel was served with the alias summons on April 29, 1912, and on the return day thereof appeared specially and moved the court to quash the alias summons on the ground that the form, issuance, service, and return of the alias summons were in violation of the Practice Act. This motion was overruled. The court thereupon entered a rule requiring all of the defendants to plead to the information by May 9, 1912. On the latter date, the defendants having failed to plead or demur to the information, judgment by default was rendered against them, ousting them from the respective offices of president and trustees of the village of Neunert and imposing a fine of $1 upon each. The defendants have appealed from that judgment, and contend that the court erred in overruling the motions to quash the summonses and in rendering judgment by default at the April term of the circuit court, because the summonses were issued during said April term and under section 1 of the Practice Act could not be made returnable before the next term of court.

Appellants rely upon the case of Lavalle v. People, 68 Ill. 252, in support of their contention. That case was instituted and determined in 1873, while the Quo Warranto Act of 1845 was in force. That act contained no provision with reference to the issuance or return of summons in quo warranto proceedings, and in the Lavalle Case it was held that section 1 of the Practice Act of 1872, then in force, governed the issuance and return of summons in such proceedings, and that a defendant therein was entitled to be summoned 10 days prior to the first day of the term to which the writ was returnable. The Quo Warranto Act and the Practice Act have both been revised since the decision in the Lavalle Case was rendered.

[1] In 1874, the year following that in which the Lavalle Case was decided by this court, the Legislature passed an act entitled ‘An act to revise the law in relation to quo warranto.’ This act is chapter 112 of Hurd's Statutes of 1911. Section 2 of the act is as follows: ‘On the filing of such information, the clerk of the court shall issue a summons in like form as other summons, commanding the defendant to appear at the return term thereof, to answer the relator in an information in the nature of a quo warranto. If the information is filed in vacation, the summons shall be made returnable on the first day of the next succeeding term; if in term time, it may be made returnable on any day of the same term, not less than five days after the date of the writ, as shall be directed by the court.’ By section 4 it is provided that every defendant who shall be so summoned shall be held to demur or plead to the information on the return day of the summons or within such further time as may be granted by the court, and in default thereof that judgment may be taken nil dicit. The obvious purpose of the revision of the Quo Warranto Act in 1874 was to change the practice as settled by the decision in the Lavalle Case under the act of 1845, and to provide a different procedure for summoning defendants in quo warranto proceedings than that provided for ordinary civil actions at law by section 1 of the Practice Act.

The Practice Act was revised in 1907, and by section 1 thereof it is provided that ‘the first process in all actions to be hereafter commenced in any of the courts of record in this state shall be a summons, * * * which summons shall * * * be made returnable on the first day of the next term of the...