Smith v. Trimble

Walker, J. It nowhere appears, in this record, that a summons was ever issued, in the case. A copy is not given in the transcript, nor does the pro confesso order or final decree find that one was ever issued. It has been repeatedly held by this court, and it must be regarded as the settled practice, that there must have been a summons issued, and it must be returned by the sheriff, or the defendant must have entered his appearance, to sustain a decree against a non-resident defendant. If a non-resident is proceeded against by publication, the court does not acquire jurisdiction, unless a summons has been regularly issued and returned by the sheriff. Jacobs v. Smith, 14 Ill. 359; Randall v. Songer, 16 Ill. 27; McDaniel v. Correll, 19 Ill. 226; Chickering v. Failes, 26 Ill. 507. The want of a summons in this case cannot be supplied by the return of a certificate of the clerk to a writ of certiorari, that there had been a summons, which was lost, nor by the recital in the notice of publication that it had been issued. We can look alone to the transcript of the record, nor have we any authority to permit the party. to supply, by proof, any part of the record. If any power exists to supply a portion of the record, it is in the Circuit Court, and not in this. We can only try the case on the record of that court. The Circuit Court has the power in some cases, and probably has in such a case as this, upon proper notice to the opposite party, and upon clear and satisfactory evidence, to supply any portion of the record which has been lost or mutilated. It is insisted that the evidence upon which the court below acted, is not preserved in a bill of exceptions or by a certificate of the presiding judge. This bill was taken as confessed, and, consequently, the rule requiring the evidence to be preserved in the record, has no application in this' case. When a bill is taken as confessed, the court trying the cause may, in its discretion, require proof as to all, or to any portion of the allegations of the bill, or render a decree on the fro confesso order, without evidence. The decree should have ascertained the precise amount that was required to be paid, and not left it to computation. Had this been the only error in this record, the decree might have been modified in this court, but owing to the want of jurisdiction of the court below-, over the person of the defendant, either by actual or constructive. service, the decree of that court is reversed, and the cause remanded. Judgment reversed.