31 Ill. 162 | Ill. | 1863
delivered the opinion of the Court.
The only question presented by this record is as to the service of the summons in the case. The summons is in the usual form, on which is this indorsement:
“ I acknowledge service of the within summons upon me, as required by law, this 9th day of May, 1861, by the same being read to me, and receiving a copy of the same. Geoege 0. BANKS.”
In chancery, the service of a summons is by copy. Scates’ Comp. 139. Here is the written acknowledgment on the summons, signed with the name of the defendant in the suit, that he received a copy of it on the ninth day of May, 1861. The summons is dated the eighth of May. The defendant was ruled to answer on the 20th of May, and on his failing so to do, the bill was taken for confessed, and the matters thereof decreed by the court.
It is now insisted that the court had no jurisdiction over the person of the defendant, for the reason the summons was not served upon him. This is a fundamental fact, and if it does not exist, the decree was erroneous.
The decree recites, “it appearing to the court that said respondent had been duly served with process more than ten days before the first day of the present term of court, no answer filed, it is ordered that the bill be taken for confessed.”
We cannot distinguish this case, in principle, from the case of Timmerman v. Phelps, 27 Ill. 496. That was a case where the process was returned served by a deputy sheriff, without using the name of the sheriff. The decree was rendered by default, and the error assigned was this service of the process. The decree recited, that it appeared to the court that process had been duly served on the defendant. This court said, that the Circuit Court had substantially found, that the sheriff was dead at the time this summons was served, for it found that the summons was duly served, and that could only be so when it was made to appear to the court that the sheriff was dead.
So in this case, the court having found the summons was duly served, it could only be by it having been made to appear by proof, which need not be preserved in the record, that the acknowledgment of service was in the handwriting of the defendant, and was his act. This finding, as in that case, is conclusive, unless the defendant, on a motion to set aside the default, would show that the court unadvisedly “ found the fact.”
In the case of Maher v. Bull, 26 Ill. 351, the service relied on was this: “ Served the within writ on the within named Hugh Maher by informing him of the contents of the within writ, and he accepting service the 12th of October, 1860.” This court said the service was not sufficient, but it might have been sufficient if he had acknowledged service in writing upon the process. Here the service is acknowledged in the most formal manner on the process and in writing, and we think it is sufficiently proved, by the recital in the decree. The decree must be affirmed.
Decree affirmed,.
