Darby v. McConnel

Catón, J. The only question in this case is, whether,process which is sued out after the judge in vacation has appointed a special term of the Circuit Court, shall be made returnable to the special term or to the succeeding general term. The appointment of this special term was authorized by the 50th section of the chapter entitled Courts, which says that “ all process which may have been made returnable to the regular term shall be deemed in law returnable to the said special term appointed as aforesaid.” It was decided, in Rucker v. Collins, (11 Ill. 223,) that under this provision process which had been sued out previous to the appointment of the special term, and which upon its face was returnable to the next succeeding general term, should be deemed and held returnable to the special term. Further reflection has but confirmed us in the views which we then entertained. The words “ which may have been,” refer to process issued at any time before the event alluded to, which was the appointment of the special term, and which was still returnable. But it could not mean process which had been issued before the previous term, for to that term such process must necessarily have been returned, and consequently could not have been returnable. The words, then, could refer only to process issued subsequent to the previous term, and before the appointment of the special term. It is true that the 43d section of the same chapter, which provides for the appointment, at any regular term of the court, of a special term, provides that suits “ may be instituted and process made returnable to such special term,” and it is argued with much force that the omission of that provision in the 50th section raises a strong implication that it was not the intention of the legislature that suits should be brought to the special term provided for in that section. But this implication, if allowed the effect contended for, would prove too much; for, by the same rule, we should have to hold that the court, at the special term appointed in vacation, could only try such causes as had been commenced after the general term and before the appointment of the special term; for in the 43d section it is provided that “the court shall have power at such special term to try all civil and criminal causes, and all orders, judgments, and proceedings made and had at such special term shall be as valid and effectual as if made or had at a regular term of the court.” As there are none of these provisions found in the 50th section conferring powers upon the court at a term appointed in vacation, there would be the same implication that by their omission in the 50th section the legislature intended to withhold those powers and that sanction from the court during such special term. Such a construction has never been contended for. It would leave the court virtually without jurisdiction which could be of any practical utility, and it would be unable to answer the purposes- manifestly contemplated by the legislature. That the court may at such special term try all causes which have been continued from the previous regular term has never been doubted; and yet we look in vain in the 50th section for that authority to do so, which is so expressly given in the 43d section. In the former it must be implied, while in the latter it is express; and with the same propriety we may imply the authority to institute suits and make process retumable to such 'special term. Our past legislation shows many examples where the legislature has authorized the judge to appoint all the terms, in particular counties, instead of fixing the terms by law, and that, too, without specifying the powers and jurisdiction of the court at such term; and yet it was never doubted that the court, at such terms, was authorized to dispose of all causes then pending, precisely as if the term had been appointed by law. I am unable to appreciate the argument of inconvenience and surprise, which was earnestly raged at the bar. The party was regularly served with process ten days before the commencement of the term, which truly told him of the time and place at which he was required to appear and answer to the suit; and there could be no more inconvenience or surprise than there would be if the term had been appointed by law, and the suit commenced and service made in the usual way. There was nothing in the whole proceeding, by which the party could be led into error. Those parties whose suits had been continued at the previous regular term over to the next regular term, the time of which was fixed by a public law, would seem to have some reason to complain at being called upon to answer, at an earlier day, at a special term, and of which it is most improbable that they might be ignorant in fact; and yet, notwithstanding the apparent reasonableness of such a complaint, as before remarked, the right of the court to try all suits continued has never been and probably never will be doubted. But it seems to me that, independent of all other provisions of the statute on the subject, the first section of our Practice Act settles this question conclusively. That section provides that the first process in an action shall be a summons, which “ shall be made returnable on the first day of the next Circuit Court in which the action may be commenced.” This is broad language, and certainly embraces within it special as well as general terms. Indeed, it will require construction to exclude from its operation the special chancery term provided for in the forepart of the 43d section and the special term for the trial of prisoners in jail, provided for in the 45th and 46th sections. It has already-been decided by this court, in the case of Rogers v. Miller, (4 Scam. 333,) that a summons which is returnable to the first day of the next term of the Circuit Court is sufficient without specifying the day. Had such been the direction of the summons in this case, it would have been returnable to the special term, unless it can be shown that that was not a term of the court. We are of opinion that this action was properly brought to the special term, and that the decision of the Circuit Court be reversed, and the cause remanded. Judgment reversed.