55 Ill. App. 207 | Ill. App. Ct. | 1894
delivered the opinion oe the Court.
At the August term, 1893, of the Superior Court, the defendant in error obtained a judgment by default against the plaintiff in error. The return of the sheriff upon the summons was that it was served “ by delivering a copy thereof to George E. Davis, Director General of said Exposition ” etc., at the September term, 1894. On notice to the plaintiff in error the sheriff made a new return upon the summons which was the same as the first return, with the words “and an agent of said World’s Columbian Exposition ” added to what is first herein copied.
When that amendment was made, this writ of error, which had been made a supersedeas, was pending in this court.
In obtaining leave to amfend the return, the defendant in error presented an affidavit that Davis was an agent ” of the plaintiff in error, and the court refused to receive any testimony or affidavit to the contrary, but granted leave “ to the sheriff to amend his return on the writ of summons in this case, so as to conform to the facts.”
That the amended return is good is not questioned, but it is insisted that the court should have heard testimony or . received affidavits that Davis was not an “ agent,” and also that the amendment should not have been permitted after a supersedeas from this court.
As to the first point the affidavit presented by the defendant in error was not the ground of the amendment.
That affidavit only served the purpose of showing that the leave to amend was applied for in good faith. The court could not dictate what the amendment should be. The sheriff acts at his peril as to the truth of the amendment he makes. Dunn v. Rogers, 43 Ill. 260.
The elaborate case of O’Connor v. Wilson, 57 Ill. 226, does not touch the questions here. Barlow v. Standford, 82 Ill. 298.
Then as the court could not dictate the terms of the amendment, it should make no previous inquiry as to the truth of the proposed amendment, at least in the absence of any circumstances exciting suspicion of the good faith of the sheriff.
The fact that this writ was pending and was made a supersedeas was no obstacle to any proper amendment below. Dunham v. South Park, 87 Ill. 185.
The statute provides for service upon a “ principal director ” as well as upon an “ agent.” It is unnecessary to decide whether “ director general ” is synonymous with “ principal director.”
It would seem that the plaintiff in error should recover costs, but authority is the other way. Toledo, P. & W. Ry. Co. v. Butler, 53 Ill. 323. Affirmed.
