Schroeder v. the Merchants

Decision Date30 September 1882
Citation1882 WL 10375,104 Ill. 71
PartiesWILLIAM SCHROEDERv.THE MERCHANTS AND MECHANICS' INSURANCE COMPANY.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. ROSENTHAL & PENCE, for the appellant:

As to when and what is the commencement of a suit: Kruse v. Wilson, 79 Ill. 238; Bush v. Hanson, 70 Id. 482; Burnap v. Wright, 14 Id. 303; Fowler v. Sharp, 15 Johns. 326; Cheetham v. Lewis, 3 Id. 22; Society, etc. v. Whitcomb, 2 N. H. 227.

The plaintiff, by filing his præcipe, moved the court for a summons. The court, through the law, acted, and made and issued a summons. The suit so commenced was not discontinued, but being undisposed of, was continued by operation of law to the next term of court. Rev. Stat. chap. 37, sec. 56.

The defendant entered a general appearance, thereby waiving all objection to the manner it was brought into court. Easton v. Altum, 1 Scam. 250; Crull v. Keener, 18 Ill. 65; Flake v. Carson, 33 Id. 518; Dunning v. Dunning, 37 Id. 316; Roberts v. Formhalls, 46 Id. 66; Baldwin v. Murphy, 82 Id. 485; Watson v. Corse, 86 Id. 46.

Messrs. JUSSEN & ANDERSON, also for the appellant:

In this State the suing out of a summons, even though it be not returned by the sheriff, is the commencement of the suit, if the plaintiff subsequently appear and plead in the action. Nor is the delivery of the writ to the sheriff essential to the commencement of the suit. Collins v. Montemy, 3 Bradw. 183; Feazle v. Simpson, 1 Scam. 30.

Upon the matter of the commencement of actions, and the practice in respect thereto, counsel cited Hurd's Stat. 1881, chap. 110, sec. 1; chap. 25, sec. 16; Rev. Stat. 1874, chap. 53, secs. 9, 15, 33.

The return of the writ here is not “of record,” as it was under the former English practice, as is laid down in Tidd, vol. 1, p. 161, and in Bates v. Jenkinson, 24 Geo. 3, quoted in Harris v. Woolford, 6 T. R. 618; 3 Ch. Pr. 139. But now, under the act of Parliament, (2 W. 4, C. 39, sec. 4,) the suing out of the summons is the commencement of the suit for every purpose. Alston v. Underhill, 1 Cromp. & M. 492.

Mr. P. H. SMITH, Jr., and Mr. H. J. PEET, for the appellee:

A suit is not legally commenced, so as to save the bar of the Statute of Limitations, until the summons is sued out and placed in the hands of the proper officer to be served, or placed in his office, or transmitted to him for service. Hecla Ins. Co. v. Schrœder, 9 Bradw. 472; Angell on Limitations, sec. 312; Hancock v. Ritchie, 11 Ind. 48; Evans v. Galloway, 20 Id. 479; Burdick v. Green, 18 Johns. 14; Ross v. Luther, 5 Cow. 158; Lamkin v. Nye, 43 Miss. 241; Davis v. Duffie, 18 Abb. Pr. 360; Webb v. Peel, 1 Paige, 564; Hayden v. Bucklin, 9 Id. 512; Updike v. Ten Brœck, 32 N. J. L. 105; Bronson v. Earle, 17 Johns. 63; Mason v. Cheney, 47 N. H. 41; People v. Clark, 33 Mich. 112.

Where a party attempts at law to avoid the application of the Statute of Limitations, by showing that the first writ was sued out in time for that purpose, although the subsequent one was after the time, he must show the first writ not only to have been issued, but to have been returned. Prindiville v. Maydwell, 7 B. Mon. 314; Harris v. Woodford, 6 T. R. 617; Barkins v. Wilson, 6 Cow. 471; Davis v. West, 5 Wend. 63; Soulden v. Van Renssalaer, 3 Id. 472.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant sued appellee in assumpsit, to recover for loss by fire on a policy of insurance. The policy contained a clause that no suit or action against the company to recover for loss thereunder shall be sustained, “unless such suit or action shall be commenced within twelve months next after the loss shall occur;” and if it should be commenced after that time, “the lapse of time shall be taken as conclusive evidence against the validity of the claim, any statute of limitations to the contrary notwithstanding.” Before the expiration of twelve months after loss plaintiff sued out a summons against appellee. The clerk docketed and numbered the suit, and handed the summons to plaintiff's attorney, but he failed to place it in the hands of an officer for service. At the return term the attorney handed the writ back to the clerk, with directions to issue another to the next term, which he did, and it was duly served, and so returned. Defendant appeared and pleaded the general issue, and pleas that the suit was barred under this clause in the policy. Subsequently a trial was had, and it appeared that twelve months after the loss expired between the dates of the issuing of the two writs, and under an instruction of the court the suit was not commenced until the suing out of the second summons, and the jury found a verdict against plaintiff, and after a motion for a new trial was overruled, a judgment was rendered on the verdict. Plaintiff thereupon removed the case to the Appellate Court, where the judgment was affirmed, and he brings it by appeal to this court, and urges a reversal.

The single question presented for decision is, whether the suing out of the first summons was a commencement of the suit, or was it the latter, placed in the hands of the sheriff, and duly served. It is urged, that even if the suit was commenced by issuing the first summons, as it was not delivered to the sheriff, and returned by him, the suit abated, and the bar became complete before the next was issued. This proposition is not maintainable. The 56th section of the chapter entitled Courts,” provides that all proceedings pending and undisposed of in any of the enumerated courts at the end of each term shall stand continued until the next term. If this suit was commenced by the first summons, it was pending, and if so, it was clearly within the provision of this section, and continued.

Then was the suit commenced by issuing the first summons? We think it was. What is the commencement of a suit? It is not claimed that it is the service of process on the defendant. It is believed that no case can be found that holds the suit is not commenced until service, or appearance of defendant. We may therefore conclude that jurisdiction of the person of the defendant is not essential to the commencement of a suit. But it is apparent that a suit is not commenced until the court has in some manner acquired jurisdiction of something in relation to the controversy. It must, therefore, be over the person of the plaintiff, or the subject matter, or both. The court acquires jurisdiction of the plaintiff when he applies for its power and assistance to compel the defendant to render him his rights under the law; but this aid must be sought according to prescribed forms, and under our practice that form requires that he file with the clerk of the court a præcipe for the process he desires. This is an application, in its nature, to the court to send its process to require the defendant to appear at a subsequent term to defend the action. The court clearly has jurisdiction of the plaintiff when he thus invokes its aid. When he thus submits his person to the court, he, by asking its aid, gives the court jurisdiction over the subject matter in controversy, and confers power to adjudicate and determine his rights thus submitted. In this manner the court becomes possessed of jurisdiction of the person of the plaintiff and of the subject matter, and when so possessed it becomes the duty of the court to commence and carry on the power to bring the defendant into the court, that the case may be heard; and the rights of the parties in the matter thus brought before the court may be judicially and conclusively determined. It therefore follows, that when the plaintiff submits himself and the subject matter to the jurisdiction of the court, and the court or law commences acting under his claim for its investigation, he has commenced his suit. When he puts the court or its instruments in motion under his claim, his action is commenced. All done in the case subsequently is but a continuation of the action he thus started, until the final end of the action or suit.

Jurisdiction has been defined to be: “The power to hear and determine a cause. * * * It is coram judice whenever a case is presented which brings this power into action.” ( Bush v. Hanson, 70 Ill. 480; United States v. Anedando, 6 Pet. 709.) The præcipe, when filed, brought the power of the court into action, and it, or the law through the clerk, did act by issuing the summons, and the suit was commenced as soon as there was action, or the law required action. Had the clerk, on the præcipe, refused to issue the summons, on a proper application the court would have compelled him to act. Now, the court is powerless to act until it acquires jurisdiction, and plaintiff has commenced his suit when he has possessed the court of jurisdiction and power to act in the case.

But the question is not a new one in this court. In the case of Burnap v. Wight, 14 Ill. 303, it was held that where a writ of error and a scire facias to hear errors were sued out within five years of the rendition of the judgment, but the scire facias was not delivered to the sheriff or served until the five years had expired, the issuing of the writ was the commencement of the suit, and a plea of the Statute of Limitations would not bar the action. There the writ of scire facias was not delivered to the sheriff for service, nor was the writ of error placed in the hands of the clerk to whom it was directed, before the expiration of five years after the rendition of the judgment sought to be reviewed. Hence it was there held that it was the suing out of the writ, and not its delivery to the officer for service, that was the commencement of the suit. We regard that case as conclusive of this question.

Again, in the case of Feazle v. Simpson, 1 Scam. 30, the...

To continue reading

Request your trial
25 cases
  • Ballard v. Hunter
    • United States
    • Arkansas Supreme Court
    • February 11, 1905
  • State ex rel. Poston v. District Court of Eighth Judicial District, Fremont County
    • United States
    • Wyoming Supreme Court
    • July 1, 1924
    ... ... Kans. 385; Kent v. Honsinger, 167 F. 619, no action ... is commenced until service or appearance of defendant, ... Schroeder v. Ins. Co., 104 Ill. 71; the rule ... requiring appearance and objection below before issuance of ... the writ will be justified, and is subject ... ...
  • United States v. American Lumber Co.
    • United States
    • U.S. District Court — Northern District of California
    • April 19, 1897
    ... ... See, ... in this connection, the dissenting opinion of Mr. Justice ... Mulkey in Schroeder v. Insurance Co., 104 Ill. 71 ... None of the authorities cited by counsel for complainant ... militate very seriously, in my judgment, against ... ...
  • Vincent v. McElvain
    • United States
    • Illinois Supreme Court
    • October 6, 1922
    ... ... We know of no authority which holds that a suit is not commenced until the court gets jurisdiction of the defendant. Schroeder v. Merchants' & Mechanics' Ins. Co., 104 Ill. 71. The same reasoning applies to the question here presented. When the executor filed his bond and the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT