Linder v. Crawford, 95 Ill. App. 183 (1901)

March 11, 1901 · Illinois Appellate Court

95 Ill. App. 183

John Linder et al. v. W. R. Crawford.

1. Sheriff’s Return — Amendment of, ete. — A suit in assumpsit was commenced in the Circuit Court of Richland County, a summons issued and July served on the defendant, but in making his return the sheriff omitted to state the date of the service. After the death of the defendant a motion to amend the return was made upon due notice to the widow and heirs of the defendant and allowed, and the return amended accordingly. Held, proper.

Motion to Amend a Sheriff’s Return. — Appeal from the Circuit Court of Richland County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the August term, 1900.

Affirmed.

Opinion filed March 11, 1901.

H. G. Morris, attorney for appellants.

T. W. & Parke Hutchinson, attorneys for appellee.

Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was a proceeding by appellee against -appellants in the Circuit Court of Richland County, on motion by appellee for leave to sheriff to amend his return as to services of ■summons. Upon final hearing of the motion the court granted the motion and the return was amended. Appellants excepted and bring the case to this court by appeal.

On the 27th day of March, 1895, W. R. Crawford & Co. brought suit in assumpsit to the April term of the Circuit Court of Richland County, against John Linder, then a resident of said county. Summons was duly issued and in fact duly served the same day the suit was commenced. At the return term of court Linder did not appear and judgment was rendered against him by default. As the return appeared on the summons, at the time the default and judgment were entered, it was as follows:

I have duly served the within by reading the same to the within named John Linder as I am therein commanded.

Jeff McWilliams, Sheriff.

By Daniel Gathart, Deputy.”

In the following September John Linder died intestate, leaving him surviving his widow, Susan Linder, his son John Linder, and his daughter, Rosa Linder. At the April term, 1900, of the Circuit Court of Richland County, the case was redocketed, a motion filed for leave to amend the sheriff’s return, and notice was duly served on the widow and heirs of the deceased defendant.

The evidence clearly shows that the said Jeff McWilliams was, at the time of the service of the summons, the duly qualified and acting sheriff of said Richland county and that the said Daniel Gathart was his duly appointed, qualified and acting deputy, and the evidence further clearly shows that the summons was in fact duly served on the 27th day of March, 1895, by the .deputy. There are no rights of innocent third parties acquired in good faith, involved in this issue, to be prejudiced by the amendment. As to the right to amend in such case, the decision of the Supreme Court in Spellmeyer et al. v. Gaff, 112 Ill. 29, is conclusive.

We find no substantial error in this record. The judgment of the Circuit Court is affirmed.