Williams v. Chalfant, 82 Ill. 218 (1876)

June 1876 · Illinois Supreme Court
82 Ill. 218
Thomas W. Williams et al. v. Bayard Chalfant

Thomas W. Williams et al. v. Bayard Chalfant.

1. Practice—judgment erroneous as to all defendants if a part are not served. It is error to render judgment against all the defendants, where it appears that no service has been had upon one; and if judgment is so rendered, it will be reversed as to all, as well those served as the one not served.

2. Service—by special deputy. A return on a summons withtiiesheriff’s name and fthe name of a special deputy signed to it, if sworn to by the special deputy, is sufficient.

Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.

Mr» B. B. Smith, for the plaintiff in error.

Messrs. Baser & Goodnow, for the defendant in error.

Per Curiam:

This was a suit in assumpsit, brought against five defendants. The court below found that service of process had been had on all the defendants, and rendered judgment against them all. This was error, as the return of the summons shows that one of the defendants, James W. Bobb, was not served with process; and the judgment, being an entirety, must be reversed as to all the defendants. Rider et al. v. Alleyne, 2 Scam. 474; Brockman et al. v. McDonald, 16 Ill. 112.

As to another of the defendants, Tucker, the sheriff, by indorsement in writing upon the summons, appointed John W. Wilson his special deputy to serve the same on Tucker. The deputy signed the return of his service on Tucker in this form:

“H. B. Hall, Sheriff,

John Wilson, Deputy.”

It is objected that this was not sufficient evidence of service by the sheriff. The return is accompanied with a certificate of a notary public that it was subscribed and sworn to before *219him by Wilson, special deputy sheriff. This makes the return to be in conformity with the provision of the statute, in the case of a special deputy sheriff thus appointed to serve a particular summons. R. S. 1874, p. 990; The Council of Village of Glencoe v. Owen, 78 Ill. 382.

For error in rendering judgment against one of the plaintiffs in error who had not been served with process, the judgment is reversed and the cause remanded.

Judgment reversed.