Illinois & Mississippi Telegraph Co. v. Kennedy, 24 Ill. 319 (1860)

April 1860 · Illinois Supreme Court

24 Ill. 319

The Illinois and Mississippi Telegraph Company, Plaintiff in Error, v. William Kennedy, Defendant in Error.

ERROR TO GRUNDY.

Where a corporation is sued, the service should be upon the president of it, if he resides in the county in which the suit is brought.

The return must be positive as to the service on the proper officer; the sheriff must take the responsibility of determining the fact.

A service on A. B., as president, is not good.

This was an action of assumpsit against the Mississippi Telegraph Company, for an injury sustained by a horse of the defendant in error, by running against the telegraph wire, which, it is alleged, was left too near the earth.

The return to the process issued in this case, was, “ Executed this writ, by reading the same to J. D. C., as president of the Illinois and Mississippi Telegraph Company, and by leaving a copy of this writ with him, Sept. 15th, 1855.”

There was a judgment by default in the Grundy Circuit Court, on the verdict of a jury, for one hundred and sixty dollars.

The case .was brought to this court by writ of error.

B„ C. Cook, for Plaintiff in Error.

T. L. Dickey, for Defendant in Error.

Breese, J.

We hold the service insufficient in this case, for the reason that the writ is against the Illinois and Mississippi Telegraph Company, and the service authorized by the act (Scates’ Comp. 243,) shall be on the president of the company, if he resides in the county in which the suit is brought.

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 it upon A. B. “ as president,” is not a compliance with the statute.. The judgment is reversed.

Judgment reversed.

Catón, C. J., did not sit in this case.