Hamilton v. Dewey

Catón, 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. It had always been previously held, that where the Circuit Court 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.