31 Ill. 194 | Ill. | 1863
delivered the opinion of the Court.
The question which this record presents, is, whether, under the legislation of this State, the Common Pleas Court of the city of Aurora, has jurisdiction to try a cause, in which Kane County is the defendant. By the 18th section of the chapter entitled “ Counties and County Courts,” (Rev. Stat. 192), it is enacted, that “ All actions, local and transitory, against any county may be commenced and prosecuted to final judgment and execution, in the Circuit Court of the county against which the action is brought.” In the case of Randolph County v. Ralls, 18 Ill. 29, it is held, that this provision is imperative, and the suit must be brought in the Circuit Court of the county sued. The word may, in that section, is construed to mean must, in accordance with former decisions of this court, where statutes have used the word may in an imperative sense.
But even if the act creating the Court of Common Pleas, is sufficiently comprehensive, to embrace jurisdiction to try a suit against the county, no express power is conferred, to serve its process beyond the limits of the city. The first section of the act creating this court, (Sess. Laws, 1857, p. 392), declares that there shall be established in the city of Aurora an inferior court, of civil and criminal jurisdiction. It is declared to be a court of record, with concurrent jurisdiction, within the city, with the Circuit Court, in all cases, except treason and murder. The fourth section provides, that process of the court shall be tested in the name of the clerk, and be issued and executed in the same manner as process from the Circuit Court of Kane county.
The concurrent jurisdiction of this court with the Circuit Court, is only co-extensive with the city limits. The process of the Circuit Court is confined to the-county except in a few specified cases. And in suits against a county, it can in no case run beyond the limits of the county, to obtain service on the defendant. It would therefore appear to be clear, that the Common Pleas had no power to send its process against the county, beyond the city for service.
But it is contended, that the presumption will be indulged, for the purpose of sustaining the jurisdiction of the court, that the county clerk was served within the city. .If this was conceded, would the service be in accordance with the requirements of the statute ? The 18th section of the act already referred to, provides, that the summons shall be served, by leaving a copy with the clerk, either during the sitting of the Commissioners’ Court, or so that a term of that court shall intervene between the service and the return day of the writ. And it requires ten days, between the service and return day of the writ.
The service is constructive upon the county. It is through the clerk that the county authorities receive notice of the pendency of the suit, and as he is required to keep his office at a designated place for the transaction of public business, it would seem, that this service should be made at his office. It is designed # that all public business connected with the county shall be transacted at the office of the clerk, or where the board of supervisors hold their sessions. The service of a summons against the county is not an exception. It is there, that he performs his official duties, and his official acts bear date. It might occur, that the clerk in leaving the State, and passing through the city could be served, and he might absent himself for months, and the county receive no notice of the service on the clerk, in time to make defense. We think the service on the clerk should be made at his-office.
But if this is not so, the law requires a term of the County Court, which is superseded by the Board of Supervisors, to intervene between the service and the trial. In this case the sheriff returns, that he served the summons on the 29th day of November, 1859, and on the 12th day of December, following, a rule was taken to plead. At the March term, 1860, of the court, a judgment by default was entered. Then it will be seen that a regular meeting of the board did not occur after the service and before the judgment. The law has only provided for one regular meeting of the board of supervisors in each year, and that is on the second Monday of September. (Scates’ Comp. 337, Sec. 2.) The legislature, in regulating the service on the county, intended that the county authorities should have actual notice of the pendency of the suit, and intended that they should have it while in session for the transaction of business. Not being personally served, and the clerk not being required to notify them individually, the presumption w'ould be, that they had no such notice as the law designed them to have. If a meeting fixed by law, had intervened, the presumption would be, that the board had notice. This record fails to show that there was a special meeting of the board after the service and before judgment, and we will not presume that there was. If there was no other error in the record, the judgment would be reversed for this.
The judgment of the court below is reversed, and the cause remanded.
Judgment reversed.