Hildreth v. Hough, 20 Ill. 331 (1858)

April 1858 · Illinois Supreme Court
20 Ill. 331
J. M. Hildreth, Plaintiff in Error, v. Rosell M. Hough et al., Defendants in Error

J. M. Hildreth, Plaintiff in Error, v. Rosell M. Hough et al., Defendants in Error.

ERROR TO COOK.

A summons issued in October, returnable on the first day of the next term, which is on the fourth Monday of October next, is a nullity; the word “ next ” refers to the month, and not to Monday; and there being more than one. term intervening between the issuing of the writ and the return day, makes it void.

This case is státed at length in the opinion of Mr. Justice Breese.

Scammon & Fuller, for Plaintiff in Error.

C. B. Hosmer, for Defendants in Error.

Breese, J.

This action was commenced by issuing a summons against the defendant, October 11th, 1855, returnable to the fourth Monday of October thereafter, which summons is as follows:

COOK COUNTY, STATE OE ILLINOIS,

The People of the State of Illinois to Sheriff cf said County, Greeting :

We command you that you'summon J. M. Hildreth, if he shall be found in your county, personally to be and appear before the Circuit Court of Cook county, on the first day of the next term thereof, to be holden at the court-house, in the city of Chicago, in said county, on the fourth Monday of October next, to answer unto Resell M. Hough, Oramel S. Hough and Charles H. Seaverns, in a plea of trespass on the case, upon promises, to the damage of the plaintiff, as is said, in the sum of five hundred dollars. And have you then and there this writ, with an indorsement thereon, in what manner you shall have executed the same.

Witness, Louis D. Hoard, clerk of our said court, and the seal thereof, [seal.] at the city of Chicago aforesaid, this eleventh day of October, A. D. 1855. L. D. Cleric.

And afterwards, on the 3d day of November, A. D. 1855, the plaintiffs filed their declaration in assumpsit for cattle sold and delivered, and common counts. Damages, $500.

And upon the 21st day of November, A. D. 1855, no .plea having been filed, the default of the said defendant was then and there entered, and an order for a writ of inquiry. And upon the 31st day of March, 1856, damages were assessed by the court at five hundred dollars.

The plaintiff in error assigns for error, the rendering of the judgment in said case, in that the summons issued in said case, and upon which the action is founded, was dated October 11th, *3321855, and therein, made returnable to the fourth Monday of October next, in which case the summons was, by its own provision, made returnable to the fourth Monday of October, 1856, and thereby, more than one year would intervene between the teste and return of the writ.

The error is well assigned. “ Next,” in its connection, refers ¡to month, and not to Monday; and there is, therefore, more than one term intervening the issuing the writ and the sitting of' the court. The writ is, consequently, a nullity, and the default taken irregular. Calhoun v. Webster & Hickor, 2 Scam. R. 221.

The judgment is reversed.

Judgment reversed.