23 Ill. 473 | Ill. | 1860
We are asked in this case to reconsider the question decided in Orendorff v. Stanberry, 20 Ill. R. 90. The judgment was rendered against Gill, the plaintiff in error, by the Logan Circuit Court, upon a summons issued by the clerk of that court, as follows:
" THE STATE OE ILLINOIS, 1 . LOGAN COUNTY. j
The People of the State of Illinois to the Sheriff of Cook County:
We command you that you summons George Michael and Elijah Wicklin and Richard T. Gill, if they shall be found in your county, personally to be and appear before the Circuit Court of said county, on the first day of the next term thereof, to be holden at the Court House in Lincoln, on the third Monday in the month of September next, to answer Samuel Hoblit in a plea of assumpsit, to his damages, $600, as he saith: and have you then and there this writ, and make return thereon in what manner you execute the same.
Witness J. C. Webster, Clerk of our Circuit Court at Lincoln, [seal.] this 21st day of August, in the year of our Lord one thousand eight hundred and fifty-seven.
Teste : J. C. Webster, Clerk of Circuit Court.”
This summons was returned by the sheriff of Cook county served on Gill; the other defendants not found. Where was the defendant below commanded to appear and answer the complaint of the plaintiff? The summons was directed to the sheriff of Cook county, who was commanded to summon the defendants, if they should be found in his county, to appear before the Circuit Court of said county, at the court house in Lincoln. There can be no dispute that the. county of the sheriff to whom the summons was directed, was Cook county. In that county he was commanded to search for the defendants, and if found there, to summon them to appear before the Circuit Court of that county. If the sheriff obeyed the command of the writ, he summoned Gill to appear before the Circuit Court of that county. His return shows that he served the writ as he was commanded by it. Had he summoned the defendant to appear before the Logan Circuit Court, he would have disobeyed the mandate which he had received, and for that reason the act would have been void. Where then was the defendant bound to appear ? Not in Logan county surely, for he was not required to go there, but before the Circuit Court of Cook county, to be holden at Lincoln, and when he could find no such place in that county, he was not bound to seek another court in a different county. It was not a matter of doubt even, as was urged upon the argument, whether he should appear before the Cook or the Logan Circuit Court, which doubt he was bound to solve by hunting up Lincoln, in Logan county, and there appearing. He was no more bound to go into Logan county than he was into Peoria. He was bound to obey the summons, or if that was impossible, he was bound to do nothing. But the summons was in fact void, for it contained a mandate to the defendant which he was not bound to obey, and which, in fact, it was impossible for him to obey. We adhere to our former decision, and reverse the judgment and remand the cause.
Judgment reversed.
