37 Ill. App. 314 | Ill. App. Ct. | 1890
Plaintiff in error filed a praecipe in assumpsit against the defendant in error on November 27, 1889. A summons was issued, but was never served or returned into court. On April 16, 1890, defendant "appeared by attorney, and on April 19th, on motion of said defendant’s attorney, the suit was dismissed for want of a declaration. This was error. The plaintiff has until ten days before the second term after service to file his declaration. Herring v. Quimby, 31 Ill. 153.
“The object of the statute is to hasten proceedings, and not allow a plaintiff to keep a defendant attending in court from term to term, without apprising him of the nature of the complaint against him.” Downey v. Smith, 13 Ill. 671.
A defendant is not in court till he has been served with process, or has appeared. Appearance is a substitute for service, and the same result must follow when the court gets jurisdiction of the defendant by appearance, as when it is obtained by service.
Hence, a plaintiff has the same time after notice of appearance to file his declaration as he has after service, unless, indeed, the defendant applies to the court for a special rule on him to file it at a particular time.
The judgment of dismissal must be reversed and the case remanded to the Superior Court.
JReversed and remanded.
