Werner v. W.H. Shons Co.

• Citation: 173 N.E. 486,341 Ill. 478
• Decision Date: 09 December 1930
• Docket Number: No. 20170.,20170.
• Parties: WERNER v. W. H. SHONS CO.
• Court: Supreme Court of Illinois

341 Ill. 478

173 N.E. 486

WERNER

v.W. H. SHONS CO.

No. 20170.

Supreme Court of Illinois.

Oct. 25, 1930.

Rehearing Denied Dec. 9, 1930.

Error to Appellate Court, Fourth District, on Error to Circuit Court, Pope County; A. E. Somers, Judge.

Action by Oscar C. Werner against the W. H. Shons Company. Judgment for plaintiff by the circuit court was affirmed by the Appellate Court, and defendant brings certiorari.

Reversed and remanded.James A. Watson, of Elizabethtown, and McKenna & Harris, of Chicago (James J. McKenna, of Chicago, of counsel), for plaintiff in error.

B. F. Anderson, of Golconda (John W. Browning, of Harrisburg, of counsel), for defendant in error.

DUNN, C. J.

The circuit court of Pope county entered a judgment in favor of Oscar C. Werner for $15,000 against the W. H. Shons Company by default at the January term, 1929. The Appellate Court for the Fourth District affirmed it, and, on petition of the defendant, a writ of certiorari was awarded to bring the record before us for review.

The only question is the validity of the service under section 13 of the Practice Act (Smith-Hurd Rev. St. 1929, c. 110), which is as follows: ‘Any non-resident person or any co-partnership, the members of which are all non-residents, but having a place or places of business in any county of this state in which the suit may be instituted, may be sued by the usual and ordinary name which such person or co-partnership has assumed and under which such person or co-partnership is doing business and service of process may be had in such county upon such person or copartnership by serving the same upon any agent of such person or co-partnership within this state.’

Summons was issued July 25, 1928, for the W. H. Shons Company, returnable to the October term, 1928, and directedto the sheriff of Stephenson county, and was returned served by reading and copy to W. H. Shons on July 27. Another summons was issued on October 19, returnable to the January term, which was returned:

‘I have duly served the within writ on the within named W. H. Shons Company by reading the same to Ernest Basey, an agent of the within named W. H. Shones Company, and at the same time delivering a true copy of this writ to the said Ernest Basey, agent as aforesaid, the said W. H. Shons Company or any member of said firm not being found in my county.

‘Dated this 20th day of October, A. D. 1928.

‘E. F. Peel, Sheriff.’

A declaration in the case was filed on September 19, 1928, and on February 11, 1929, at the January term of the court, a judgment by default for $15,000 was entered against the defendant, the judgment order reciting: ‘It being made to appear to the court that the W. H. Shons Company is a co-partnership, the members of which are all non-residents of the county of Pope, in the State of Illinois, but has a place of business in the said county of Pope and State of Illinois, and that the usual and ordinary name which said copartnership has assumed and under which it is doing business is the W. H. Shons Company, and it being further made to appear to the court from the writ issued herein and the return of the sheriff of Pope county thereon, that the defendant, the W. H. Shons Company, was personally served with summons by the said sheriff of Pope county, Illinois, more than ten days prior to the first day of the present term of this court.’

[1][4][6] The manner of service of summons in actions at law is governed by the Practice Act, section 2 of which declares that, except when otherwise expressly provided by statute, the service shall be made by leaving a copy of the summons with the defendant in person. The venue in all cases is determined by section 6 of the Practice Act, which provides that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, with exceptions not material in this case. Where two or more individuals are sued all must be served with summons to give the court jurisdiction of all, and, if service is not obtained upon all, no judgment can be rendered against those not served. The rule applies not only to those bound as joint contractors or joint wrongdoers, but to partners. A partnership cannot be sued by its partnership name at common law, but suit must be brought against all the partners constituting the partnership, in their individual names. Section 13 was intended to remedy this condition as to both nonresident individuals having a place of business in any county in the state and as to partnerships all of whose members are nonresidents, but who have a place of business in any county in the state, by authorizing suit to be brought against any such person or copartnership by the usual name which he or it has assumed and under which he or it is doing business, and process to be served in such county in which he or it is so doing business by serving it upon any agent of such person or partnership within the state. This statute authorizes a substituted or constructive service upon such a nonresident individual or partnership all of whose partners are nonresidents, and a judgment rendered on such service is as conclusive upon residents of the state not residents of the county in which the judgment is rendered as one rendered on personal service. Bimeler v. Dawson, 4 Scam. 536,39 Am. Dec. 430;Bickerdike v. Allen, 157 Ill. 95, 41 N. E. 740,29 L. R. A. 782;Nelson v. Chicago, Burlington & Quincy Railroad Co., 225 Ill. 197, 80 N. E. 109,8 L. R. A. (N. S.) 1186, 116 Am. St. Rep. 133;Watson v. Coon, 247 Ill. 414, 93 N. E. 289. Where a statute authorizes such constructive or substituted service, the return of the officer must show a compliance with all the requirements of the statute to authorize the service. Section 8 of the Practice Act (Smith-Hurd Rev. St. 1929, c. 110) provides for service of summons on corporations by leaving a copy with the president of the corporation, if he can be found in the county where suit is brought, or, if the president be not found in that county, then by leaving a copy with any clerk or certain other specified agent or any agent of the company found in the county. This service on the clerk or other agent is a substituted service made necessary by the inconvenience to those having causes of action against the corporation if they must go to a county where the president may be found or wait until he comes into the county where the cause of action arose or the plaintiff resides. If the process is served on an agent of the corporation other than the president, the return of the officer must show that the president was not found in the county or the court will not acquire jurisdiction of the corporation. St. Louis, Alton & Terre Haute Railroad Co. v. Dorsey, 47 Ill. 288;Chiro & Vincennes Railroad Co. v. Joiner, 72 Ill. 520;Adams & Pigott Co. v. Allen, 310 Ill. 119, 141 N. E. 386.

Section 11 of the Chancery Act (Smith-Hurd Rev. St. 1929, c. 22), provides that service of summons shall be made by delivering a copy thereof to the defendant or by leaving such copy at his usual place of abode, with some person of the family of the age of ten years or upwards, and informing such person of the contents thereof. It has been held in many decisions that the return of an officer making service of a summons for a defendant by copy delivered to another person must show a strict compliance with every requirement of the statute authorizing such service or the court will not obtain jurisdiction of the person. Piggott v. Snell, 59 Ill. 106;Townsend v. Griggs, 2 Scam. 365; Montgomery v. Brown, 2 Gilm. 581; Boyland v. Boyland, 18 Ill. 551;Tompkins v. Wiltberger, 56 Ill. 385;Mack v Brown, 73 Ill. 295. These cases and others firmly establish the rule that the return of an officer showing substituted service of a summons under section 11 of the Chancery Act instead of personal service must affirmatively state the leaving of a copy of the summons at the usual place of abode of the defendant with some person of the family (naming him) of the age of ten years or upwards, and informing such person of the contents of the summons. A failure to state any one of these particulars renders the return defective and the attempted service insufficient to give the court jurisdiction of the defendant. Moreover, these defects cannot be aided by recitals of valid service in the decree. Boyland v. Boyland, supra; Tompkins v. Wiltberger, supra.

The conditions on which section 13, Practice Act, authorized substituted service by delivering a copy of the summons to an agent instead of personal service upon the defendant were, that the defendant was a resident of Illinois but a nonresident of Pope county, or was a copartnership all of whose members were residents of Illinois but nonresidents of Pope county, and that the defendant had a place of business in Pope county. The statute, except when it expressly provides otherwise, requires service of summons to be made by delivering a copy thereof to the defendant in person. This, except for section 13, would require a copy of the summons to be delivered to the defendant in person if the W. H. Shons Company was an individual doing business under that name, or, if it was a copartnership, to at least one of the partners. The record gives no information as to the fact whether the W. H. Shons Company is the name of a copartnership or of a corporation or the name under which an individual is doing business, or, if the name of an individual or copartnership, where the individuals or partners reside, for, as will presently appear, the findings of the court on these questions cannot be considered. The established rule has been stated that the return of an officer making substituted service of a summons for a defendant upon some other person as his agent must show a strict compliance with every condition of the statute authorizing such substituted service. That rule is universally recognized, at least in Illinois, except in its...