Hamilton, impl., etc., v. Dewey.

Summons to Cook county returned, served on Dugger, in Cook. county. Hamilton not found, October 22nd, 1858.

The writ to Logan county returned, served on Hamilton in Logan county, November 8th, 1858; also a copy of declaration in this case, served on him in Logan county, November 9th, 1858. Defendant Hamilton files plea in abatement as follows:

And the said Lorenzo D. Hamilton, one of the defendants in the above entitled cause, comes and says, that this court ought not to have or take further cognizance of this action aforesaid, because he says that the said supposed causes of action, and each and every one of them, arose in the county of Logan, in the State of Illinois, and not within the county of Cook aforesaid, and were specifically made payable at Atlanta, in said Logan county, and not in the county of Cook aforesaid, and that he, the said Hamilton, resides in said Logan county, and not within said Cook county, and that process was served in this cause on him, the said Hamilton, in said county of Logan, and not in said county of Cook; and that said Jefferson L. Dugger is also a resident of said Logan county, and not of said Cook county, and that process in this cause was served on Dugger, in said Cook county, and not in Logan county aforesaid, where he resides, and this the said defendant Hamilton is ready to verify, wherefore he prays judgment, whether the court can or will take further cognizance of the action aforesaid. Sworn to, etc.

Plaintiff demurred to this plea.

The court, MANIERRE, Judge, sustained demurrer, and ruled defendant Hamilton to plead over.

No further plea was filed, and judgment was rendered against both defendants.

And Hamilton, one of the defendants, assigns for error:

1st. That the court erred in sustaining the demurrer to defendant Hamilton's plea.

2nd. That the court erred in rendering judgment for the plaintiff against defendant Hamilton.

3rd. That the court erred in not rendering judgment for defendant Hamilton.

SCAMMON & FULLER, for Plaintiff in Error.

SMITH & DEWEY, for Defendant in Error.

CATON, C. J. In the case of Kenney v. Greer, 13 Ill. R. 432, this court overruled all its former decisions upon a question of practice, or rather pleading, and upon that question alone. had always been previously held, that where the Circuit Court

It

Hamilton, impl., etc., v. Dewey.

issued its original process, beyond its own territorial jurisdiction, the jurisdictional facts authorizing the emanation of such process, must be stated in the declaration, upon which jurisdictional facts, the defendant could take issue, if they were not true. In Kenney's case, the rule was changed, and none of these facts were required to be stated in the declaration, but it was left to the defendant to show, by plea in abatement, that the facts as they existed, did not give the court jurisdiction, to send its process beyond its own county. The construction of the statute which states, when the court may send its original process beyond its county, and when not, was not disturbed in any way. That statute was permitted to stand, as it had been previously expounded by this court. In this case, the pleadings have conformed to this decision, and we have only to inquire whether the facts as stated in this plea, had they previous to that decision been stated in the declaration, would have authorized the sending of the summons from Cook, to Logan county. Upon this question, the case of Semple v. Anderson, 2 Gilm. R. 546, is directly in point. Or rather it is a stronger case than this, for there it was held, that unless it affirmatively appeared, that the defendant who was served with the process in the county where it was issued, was a resident of that county, the court had no jurisdiction, while here, it is affirmatively shown that he was not a resident of that county. This construction of the statute is expressly approved in Haddock v. Waterman, 11 Ill. R. 474, where an attempt was made to review the decisions which had been made on this statute, with some attention. In the case of Linton v. Anglin, 12 Ill. R. 284, the existing facts which authorized the Circuit Court of Clark county to issue its process to Coles county were, that the cause of action arose in Clark county, and that the plaintiff there resided. These two facts gave the court jurisdiction to issue its process to a foreign county, and we held that it might go to any county where the defendant might be found, else by giving to the word resides its strict meaning, a non-resident could not be served in any county in the State, under that clause. There is no such urgent necessity of interpolating the words or may be found, after the word resides, where it occurs in the portion of the statute now under consideration. We are inclined to adhere to the construction already given to this statute, as to the facts which must exist to authorize the court to send its process out of its county, and are of opinion, that the demurrer to the plea in abatement, should have been overruled.

The judgment will be reversed and the cause remanded. Judgment reversed.

Tiffany v. Spalding.

WILLIAM C. TIFFANY, Plaintiff in Error, v. JONATHAN SPALDING, Defendant in Error.

ERROR TO COOK COUNTY COURT OF COMMON PLEAS.

Where a party by his pleading, brings himself within section two, of chapter eightythree, of the Revised Statutes, whether it is technically to the writ or to the jurisdiction, the suit should be abated.

THIS was an action of assumpsit, commenced in Cook County Court of Common Pleas.

Summons issued to sheriff of Lake county, and returned served by said sheriff, on 19th December, 1857.

Defendant filed plea in abatement, in his own proper person, alleging, that the cause of action, if any accrued to the plaintiff, accrued to him in the county of Lake, etc., and not in the county of Cook-that the cause of action was specifically made payable in Lake-and that defendant is not a resident of Cook county. A demurrer to this plea was overruled. Defendant was defaulted, and a judgment was rendered against him for $245.60, and costs.

FERRY & WILLIAMS, and H. P. SMITH, for Plaintiff in Error. E. ANTHONY, for Defendant in Error.

BREESE, J. The defendant, by his plea in this case, brought himself within sec. 2, chap. 83, R. S. 1845, (Scates' Comp. 241,) and the court should have abated the suit. It shows a state of facts which prevented the action of the court. It can be in practice, in cases like this under our peculiar statute, a matter of no moment whether such plea is technically to the writ or to the jurisdiction. The facts stated in it, show the court had not properly acquired jurisdiction of the case, the defendant neither residing in Cook, nor the cause of action specifically payable there, nor accruing there. Under the state of facts shown by the plea, the Common Pleas had no right to render judgment against the defendant. It should have overruled the demurrer to the plea and abated the suit, if the plaintiff did not wish to take issue on the part of the plea by replying to them. On failing to reply, the court should give judgment against the plaintiff, abating the suit. The judgment of the court below is reversed and the cause remanded, with instructions to proceed in conformity to this opinion. Judgment reversed.

22 494

67a 517

Bradley v. Geiselman.

CYRUS P. BRADLEY, Appellant, v. MICHAEL GEISELMAN,

Appellee.

APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.

Where there is a conflict of testimony, and the jury choose to discredit a witness, under proper instructions, this court will not interfere.

In an action of trespass for seizing personal property, there is no objection to allowing interest on the value of the goods from the time they were taken from the possession of the plaintiff.

THIS was an action brought by Michael Geiselman, in the month of January, 1854, in the Cook County Court of Common Pleas, against Cyrus P. Bradley, for an alleged trespass in seizing certain personal property, on or about the 13th January, 1854.

The plaintiff claimed the property in the declaration mentioned, by a sale made to him on or about the thirtieth of December, A. D. 1853, by Elisha W. King and Henry A. Layton, doing business under the firm of H. A. Layton & Co. The defendant pleaded the general issue, and two special pleas. 1st. That three several executions had been issued upon the 24th day of October, 1853, upon three several judgments, one in favor of Harmon & Co., one in favor of Williams & Co., and one in favor of Walters & Co., against William J. King, which executions were severally placed in his hands, he then being sheriff of the county of Cook, on the 29th day of October, 1853, and that as such sheriff, and in obedience to the command of said executions, he did, on the 13th January, 1854, seize, take and carry away the goods and chattels in the declaration mentioned, and that William J. King owned and had an interest as partner, in the property in the declaration mentioned, and that the same was subject to said executions, and that the property was not in the plaintiff, etc.

2nd. That the property in the declaration mentioned, was seized under and by virtue of the executions above mentioned, and that on the 29th October, 1853, when the executions were delivered to him, it was the property of William J. King and Henry A. Layton, partners, doing business under the name of H. A. Layton & Co., and the interest of William J. King in said property, was, by the delivery of said executions to him on the said 29th October, 1853, made subject to the lien of said executions, and to sale thereunder, and the property was not in the plaintiff.

To these pleas, replications were filed, denying that Bradley was sheriff, and also denying that the property belonged to W. J. King.

Bradley v. Geiselman.

The case was tried at the February term of the Cook County Court of Common Pleas, 1854, and the jury disagreed and were discharged. It was afterwards removed, upon the petition of the plaintiff (Geiselman), to Kane county, and was there tried before ISAAC G. WILSON, Judge, and a jury, at the May term, 1855, and a judgment rendered in favor of the plaintiff below, for nineteen hundred and twelve dollars and twenty-five cents, from which judgment defendant appealed to this court.

The case having been reversed and remanded, it was again tried before the same judge, at February term, 1859, and verdict rendered for $2,495. The plaintiff thereupon entered a remittitur, for the sum of two hundred and four dollars and fiftyseven cents, and a judgment was entered for the sum of $2,290.43, from which judgment the defendant now appeals.

The plaintiff asked the court to give to the jury the following instructions, which was done :

1st. If the jury believe, from the evidence, that the plaintiff, Geiselman, purchased the property in question from Henry A. Layton and Elisha W. King, in good faith, and paid them the full price and value thereof, and took possession of the same; and that at the time of the sale they sold the same as their own property, and Geiselman purchased said property from them as their property; and that afterwards, whilst said property was yet remaining in Geiselman's possession, the defendant took the same from him upon an execution against William J. King, then the burden of proof is with defendant to show that said property was the property of William J. King, and not the property of Henry A. Layton and Elisha W. King, and in order to prove this, the defendant must show by competent proof, property in William J. King; and if the jury believe that the defendant has failed in his proof of ownership in this particular, then the law is for the plaintiff, and the jury must find for him, and assess his damages at what the property was worth, at the time the same was so taken from the plaintiff, and interest on the same from the time of taking, until the time of the finding by the jury for him.

2nd. If you believe, from the evidence in this cause, that the witness William White has intentionally sworn false as to any material fact in this cause, you are at liberty to disregard his evidence.

If the jury believe, from the facts and circumstances given in evidence in this cause, that the positive statements sworn to by White are false, you are not bound to believe said statements; and in deciding the issue in this cause, the jury have the right to take into consideration the conduct of said White, in his connection with the transaction of the sale from Layton & Co.,