Sibert v. Thorp

• Citation: 77 Ill. 43,1875 WL 8260
• Parties: JEREMIAH SIBERTv.WILLIAM M. THORP.
• Decision Date: 31 January 1875
• Court: Illinois Supreme Court

77 Ill. 43

1875 WL 8260 (Ill.)

JEREMIAH SIBERT

v.WILLIAM M. THORP.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

This was an action of assumpsit, by William W. Thorp, against Jeremiah Sibert and Jeriel Wilday, upon a promissory note.

The defendant Sibert, whom the sheriff's return showed was alone served with the summons, pleaded in abatement that at the time of the commencement of the suit he was a resident of Morgan county, Illinois, and was not, at the date of the commencement of the suit, found in the county of Morgan, and that process issued to the sheriff of Morgan county was served upon the defendant in the county of Scott, and not in the county of Morgan; and that at the time of such service of process, the defendant was not found or served with process by the sheriff in Morgan county, but was served in the county of Scott.

The plaintiff replied, that process was issued and served upon the defendant in the county of Morgan, and State of Illinois, and that defendant was not found and served with process in the county of Scott.

The defendant rejoined: 1st, that it does not appear of record that he was served with process in the county of Morgan, as alleged; and 2d, that defendant was found and served with process in the said county of Scott, and not in the county of Morgan, as alleged, etc.

The court sustained a special demurrer to this rejoinder, and rendered judgment against the defendant for the amount shown to be due on the note, and the defendant appealed.

Messrs. KETCHAM & TAYLOR, for the appellant.

Mr. J. T. SPRINGER, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The question presented by the record in this case is, can the defendant, by pleading, raise an issue of fact on the return of a sheriff, endorsed on a summons, in the discharge of his official duty?

The old common law authorities seem to answer the question in the negative. Comyn, in his Digest (title “Return,” “G,”) says: “No averment can be taken in pleading against the sheriff's return. 15 East, 378. If false, the remedy is by action. Lofft, 371.” And to the same effect is Allen on Sheriffs, 371. But in this country, many courts have held that the sheriff's return, on original process, is only prima facie evidence of the facts recited, and consequently that it may be shown to be incorrect. See Watson v. Watson, 6 Conn. 334; Wendell v. Mergridge, 19 N. H. 112; Rowe v. Table Mountain Water Co. 10 Cal. 441; Carr v. Com. Bank of Racine, 16 Wis. 50; Bond v. Wilson, 8 Kan. 228.

In The Mineral Point R. R. Co. v. Keep, 22 Ill. 15, the question was discussed, although it was held to have been waived by the pleading, whether it was competent to show that the persons upon whom the writ was served were not in fact the agents of the company, as recited by the return, and it was said: “We are not inclined to think the return of the officer, as to the fact of agency, when a corporation is sued, should be conclusive. Great injustice and ruin to incorporated companies might be the consequence had the officer the undisputed power to select any person he might choose as the agent of a company sued, and serve the process upon him. That he was the agent must be held to be a fact open to the country. * * * We think, therefore, that the fact of the agency could have been put in issue by plea in abatement of the writ, the defendants answering for that purpose only.” In Owen v. Ranstead, 22 Ill. 162, bill in chancery was filed to set aside a judgment at law, on the ground that the defendant was not...