The Chicago Planing Mill Co. v. the Merchants' Nat'l Bank.

• Decision Date: 30 September 1877
• Citation: 86 Ill. 587,1877 WL 9781
• Parties: THE CHICAGO PLANING MILL COMPANYv.THE MERCHANTS' NATIONAL BANK.
• Court: Illinois Supreme Court

86 Ill. 587

1877 WL 9781 (Ill.)

THE CHICAGO PLANING MILL COMPANY

v.THE MERCHANTS' NATIONAL BANK.

Supreme Court of Illinois.

September Term, 1877.

WRIT OF ERROR to the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. LEAKE & VOCKE, for the plaintiff in error.

Messrs. MATLOCKS & MASON, for the defendant in error. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This is a writ of error to reverse a judgment rendered in the Superior Court of Cook County, on July 6, 1876, in favor of the Merchants' National Bank against the Chicago Planing Mill Company, for the sum of $4,052.66. The judgment was rendered by default on a return of service in the following words:

“The president of the within named company not being found in my county, served this writ by reading and delivering a copy thereof to William H. Jenkins, secretary of said company, this 13th day of June, A. D. 1876.

FRANCIS AGNEW, Sheriff,

By WALTER MCDONALD, Deputy.”

On August 15, 1877, on due notice to the defendant in error, the court granted leave to the sheriff to amend his return of service, and the following amended return was made:

“By leave of court the above return is stricken out and amended in accordance with the facts, so as to read as follows: Served this writ by reading and delivering a copy thereof to William H. Jenkins, by direction, as secretary, this 13th day of June, A. D. 1876.

FRANCIS AGNEW, Sheriff,

By WALTER MCDONALD, Deputy.”

After this amendment of the return the writ of error was sued out, and it is urged, as a ground to reverse the judgment, the evidence of service of process was insufficient to authorize the court to render the judgment on default. On the other hand, the defendant in error has assigned cross-errors which call in question the right of the court to allow the amendment of the sheriff's return. Section 5 of the Practice Act (Rev. Laws 1874, page 775) provides that an incorporated company shall be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal director, engineer, conductor, station agent, or any agent of said company found in the county. It is clear the service as shown by the amended return is fatally defective. In the first place it does not appear by the return that the president of the corporation was not found in the county, as the act requires before process could be served on one of the other officers named in the act; but even if the return had shown the president not found, the service on Wm. H. Jenkins “as secretary” could not be sustained. The service on Jenkins as secretary was not a service on the secretary of the company. This point was expressly decided in Illinois & Mississippi Telegraph Company v. Kennedy, 24 Ill. 319, where it is said the return must be positive that the writ was served upon the president, and the officer must take the responsibility of determining the fact. To serve upon A B “as president” is not a compliance with the statute.

In regard to the cross-errors relied upon by defendant in error, we have been cited to numerous authorities, which, it is contended, establish the doctrine that the court had no authority to allow the amendment of the sheriff's return. We have carefully examined the cases cited, and while we are free to concede the defendant in error has presented his view of the case with much ability, and there are...