Payne v. Taylor, 34 Ill. App. 491 (1890)

Feb. 4, 1890 · Illinois Appellate Court

34 Ill. App. 491

J. B. Payne v. Willis Taylor et al., for use, etc.

Judgments—A etion s on—Justice's Transcript—Sufficiency of—Evidence.

1. In an action on a judgment obtained in a justice court, this court holds that the transcript in evidence was sufficient to sustain the issues on the part of plaintiff, and that, though irregular in form, it was properly admitted in evidence.

2. Parol evidence to show that the defendant in the original suit was never served with summons was properly rejected.

[Opinion filed February 4, 1890.]

Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.

This case was tried before a justice of the peace and appealed to the Circuit Court of St. Clair County. On trial in the Circuit Court, the plaintiffs, to maintain the issues on their part, gave in evidence the following transcript of judgment of a justice of the peace:

“ In Justice Court, before G. W. Morgenthaler, a justice of the peace. Suit was brought by Willis Taylor and E. H. Burgess, for the use of A. 0. Terhune, on demand of $102.25, against J. B. Payne. Summons was issued on the 26th day of December, 1887, and returnable on the 2d day of January, 1888, at 10 o’clock a. m., and given to Harry Morris, a constable, to serve. By order of plaintiff the case adjourned to 6 o’clock p. m., on the 2d day of January, 1888. On time and hour set for trial, the plaintiff appeared and the defendant did not appear. The case was called, and it appearing that due service was had on J. B. Payne, the plaintiff went to trial, and from the evidence the court finds for the plaintiff in the sum $102.20, for wages due" as laborer or servant, and costs of suit; therefore judgment is rendered accordingly, this 2d day of January, 1888. G. W. Morganthaler, Justice of the Peace.”

The transcript was duly certified to and on being offered in evidence the defendant objected; the objection was overruled and transcript allowed to go in evidence, which being all the evidence for plaintiff, thereupon the defendant offered to prove, by parol, that he was never served with summons in the suit on which the transcript of judgment was made, which was objected to and the objection sustained. It is further objected that inasmuch as the transcript is silent as to the time at which a continuance was had, and as to the time at which trial was had, and the transcript shows a continuance and trial without showing the hour each was done, that it amounts to a discontinuance of the case.

The errors assigned are in admitting in evidence the transcript, without proof that defendant had been served with summons other than as appearing by the recitals in the transcript, and in refusing to permit defendant to show by parol that he was not served with process before the justice in that suit on which the transcript in evidence was made.

Mr. Alexander Flannigen, for appellant.

Messrs. Wildebman & Hamill, for appellee.

Phillips, J.

The transcript showing the issue of summons and containing the recital—“ It appearing that due service was had on J. B. Payne,” must be held sufficient, prima facie, to show a finding by the court of service in time, and that the justice had jurisdiction of the person of defendant on that trial. Willoughby v. Dewey, 54 Ill. 266; Pardon v. Dwire et al., 23 Ill. 572.

The transcript containing this recital, finding the justice had jurisdiction of the person, it was properly admitted in evidence without other proof than that appearing by the recital in the transcript of service on defendant. Hor was there error in refusing to permit the defendant to show by parol he was not served with process to appear before the justice in that suit. Garfield v. Douglass, 22 Ill. 100; Zimmerman v. Zimmerman, 15 Ill. 84.

It is objected that inasmuch as summons was issued on the 26th of December, 1887, returnable on the 2d of January, 1888, at 10 o’clock a. m., and the transcript recites that “by order of plaintiff the case adjourned to 6 o’clock p. m. on the 2d day of January, 1888,” it not appearing when the adjournment was made or that the plaintiff was present at the hour at which the case was set for trial, that it amounted to a discontinuance; and it is further objected that it does not appear from the transcript that the case was heard at 6 o’clock, at the time to which it was continued. Technical accuracy in transcripts by justices of the peace, can not be required. The inference must be indulged that the justice, at the proper time of return, as fixed in the summons, continued the case, and it must be further inferred that at the proper time a hearing was had. Outlaw v. Davis et al., 27 Ill. 467; Crichton v. Beebe, 7 Ill. App. 272. The judgment must be affirmed.

Judgment affirmed.