Gardner v. Witbord, 59 Ill. 145 (1871)

June 1871 · Illinois Supreme Court

59 Ill. 145

Henry Gardner v. Henry A. Witbord.

1. Common pleas court oe Sparta—writ issued from, how directed. A writ issued from the court of common pleas of the city of Sparta, in Randolph county, is properly directed “to the city marshal and all sheriffs, coroners and constables of said county.”

2. Same—territorial jurisdiction of. The territorial jurisdiction of such, court is, by the provisions of the constitution of 1848, relating to inferior local courts, circumscribed by the city limits.

■3. Same—writ, whether void—service. Although the mandate of a writ, issued from such court, is to summon the defendant “ if he shall be found in your county,” etc., yet the service, if shown by the return to have been made in the city of Sparta, is good, otherwise it is defective.

But the writ itself, by reason of such mandate, although the service be defective, is not void and should not be quashed.

4. Same—venue. In the margin of a writ, issued out of the. common pleas court of the city of Sparta, in Randolph county, the proper State and county were named, and the command in the body of the writ was to summon tlie defendant, “ to be and appear before the common pleas court of Sparta, of said county, on,” etc.,“ to be holden,” etc., “at the court house in Sparta, in said Randolph county,” etc.: Held, the venue was well enough laid.

Appeal from the Common Pleas Court of Sparta; the Hon. William P. Murphy, Judge, presiding.

This was an action- of assumpsit, brought on a promissory note given by Witbord to Gardner. The question arises upon the writ, which was as follows:

State of Illinois, i Randolph county. J

The people of the State of Illinois to the city marshal, to all sheriffs, coroners, and constables of said county, greeting :

We command you to summon Henry A. Witbord, if he shall be found in your county, personally to be and appear before the Common Pleas Court of Sparta, of said county, on the first day .of the next term thereof, to be holden at the court house in Sparta, in said Randolph county, on the first Monday of February, 1871, to answer unto Henry Gardner, in a plea of assumpsit, to the damage of said plaintiff], as he says, in the sum of'three hundred ($300) dollars, and have you then and there this writ, with an endorsement thereon in what manner you have executed the same.

Witness Theodore Simpson, Clerk of our said court, and the seal thereof, at his office in Sparta, in said Randolph [seal.] county, this 23d day of December, A. D., 1870.

Theodore Simpson, Clerk

[Return of Officer.]

State of Illinois, Bandolph county :

I have duly served the within named Henry A. Witbord, this 13th day of January, A. D., 1871, as I am herein commanded. Edwin R. Foster, City Marshal. ■

The defendant filed a motion to quash the writ, assigning the following special causes:

First. For that the writ is not directed to the city marshal of the city of Sparta.

Second. For that said writ, being original process, is directed beyond the jurisdiction of the court, to-wit: “ To the city marshal and all sheriffs, coroners and constables of said county,” to-wit: Bandolph county.

Third. For that said writ commands to summon said Witbord if found in the county.

Fourth. Writ is directed and by its terms sent beyond the jurisdictional limits of the court.

Sixth. For that there is no venue laid in said writ, that is to say, the venue of said court is not laid in said writ.

The court sustained the motion to quash the writ, and rendered judgment in favor of the defendant. The plaintiff appeals.

Mr. J. Blackburn Jones, for the appellant.

Mr. John Michan and Mr. B. J. Goddard, for the appellee.

Mr. Justice Sheldon

delivered the opinion of the Court:

The error assigned upon this record, is, sustaining a motion to quash the writ.

The writ was properly directed “ to the city marshal and all sheriffs) coroners and constables,” as the act to establish the court of common pleas in the city of Sparta, in Bandolph county, expressly provides that all process shall be so directed. Session Laws of 1869, page 140, sec. 8.

The venue of the court is well enough laid in the writ. The proper State and county are named in the margin according to the ordinary form, and the command in the body of the writ is, to summon the defendant, “ to be and appear before the common picas court of Sparta, of said county, on the first day of the next term thereof, to be holden at the court house in Sparta, in said Randolph county,” etc.

The territorial jurisdiction of this court is limited by the constitution to the city of Sparta. The People v. Evans, 18 Ill. 361; Holmes v. Fihlenburg, 54 Ill. 203.

Although the mandate of the ivrit is, “ to summon Henry A. Witbord, if he shall be found in your county,” etc., the service, if it had been shown by the return to have been made in the city of Sparta, would have been good. It is now defective, as it does not appear by the return to have been so made. But the writ itself was not void, and should not have been quashed.

The judgment of the court below is reversed and the cause remanded.

Judgment reversed.