171 N.E. 562 | Ill. | 1930
Lead Opinion
Appellee, Ralph Hitchens, began an action of trespass on the case in the circuit court of LaSalle county against James E. Bennett, Frank J. Saibert, Frank A. Miller, Frank F. Thompson, Thomas Bennett and Emmett G. Barker, partners doing business as James E. Bennett Co. A summons issued to the sheriff of LaSalle county was returned as follows:
"I have duly served the within summons upon the within named James E. Bennett, Frank J. Saibert, Frank A. Miller, Frank F. Thompson and Emmett G. Barker, partners doing business under the firm name, style and description of James E. Bennett Co., by reading the same and at the same time delivering a true copy thereof to M.L. Lavelle, agent of said James E. Bennett, Frank J. Saibert, Frank A. Miller, Frank F. Thompson and Emmett G. Barker, partners doing business under the firm name, style and description of James E. Bennett Co., for each of them at his place of business in said county of LaSalle, the within named James E. Bennett, Frank J. Saibert, Frank A. Miller, Frank F. Thompson and Emmett G. Barker, partners doing business under the firm name, style and description of James E. Bennett Co., being nonresidents of and not found in my county, as I am herein commanded, this 30th day of September, 1927; the within named Thomas Bennett not being a resident of the State of Illinois nor being found in my county, he being a resident of the State of New York, this 30th day of September, 1927."
All of the partners except Thomas Bennett entered a limited appearance and moved to quash the service and the return of the sheriff. The motion to quash was overruled, all defendants except Thomas Bennett were ruled to plead, no pleas were filed, all defendants except Thomas Bennett were defaulted, a jury was selected and a verdict returned in favor of appellee for $250. Judgment was rendered *368 against all defendants except Thomas Bennett, and an appeal has been prosecuted to this court.
As ground for reversal it is urged that section 13 of the Practice act, under which the summons was served, is unconstitutional because it denies due process of law when applied to service in personal actions upon natural persons or corporations; that the section does not authorize service upon the agent of a co-partnership where one or more of the partners are not residents of the State, but service can only be had under that section where all of the co-partners reside in the State but outside of the county where they are doing business and where the suit is begun and the service is obtained, and that the return is defective because it fails to show that the co-partnership had a place of business in LaSalle county.
Section 13 of the Practice act provides: "Any nonresident person or any co-partnership, the members of which are all non-residents, but having a place or places of business in any county of this State in which suit may be instituted, may be sued by the usual and ordinary name which such person or co-partnership has assumed and under which such person or co-partnership is doing business, and service of process may be had in such county upon such person or co-partnership by serving the same upon any agent of such person or co-partnership within this State."
In Watson v. Coon,
In Joel v. Bennett,
The language of section 13 is that "any non-resident person or any co-partnership, the members of which are all non-residents," etc. Under the provisions of this statute and the holding of this court in its construction, in order for this statute to have application in any case it is necessary that all of the members of the co-partnership must be non-residents, — that is, all of them must reside outside of the county in which the suit is begun and the service is had but all of them must live in this State. The return in this case shows, and it is conceded, that Thomas Bennett was not a resident of Illinois but lived in New York. Therefore the service under section 13 did not apply to the facts in this case and the court should have quashed the service and the return.
It is insisted that the return is defective because it fails to show that the co-partnership had a place of business in LaSalle county, where the summons was served and where the suit was begun. In Joel v. Bennett, supra, the return was in almost the identical language of the return in this case, and it was substantially the same as the return in Watson v. Coon, supra. It was held in both cases that the return was good and gave the court jurisdiction of the parties.
The judgment is reversed and the cause remanded.
Addendum
The foregoing opinion reported by Mr. Commissioner Partlow is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded. *371