Ryan v. Driscoll

Hr. Justice Scholeield delivered the opinion of the Court: The only question in the present case is, does the record show that the defendant was in court, so as to be bound by the judgment rendered against him? The summons, it is claimed, was served by a special deputy. The appointment follows the form prescribed by the statute, and the return is indorsed on the summons in the words and figures following: “ Served the within writ, on the within named Patrick Ryan, on the 18th day of Hay, A. D. 1874, by reading the same to-him, and delivering to him a true copy thereof. The other defendant not found in my county. “T. H. Bradley, Sheriff, “ By J. T. Gleeson, Special Deputy “ Subscribed and sworn to before me this — day of Hay, A. D. 1874. [seal.] “ W. C. Hinard, Notary Public.” Subsequent to the return day of the writ, j'udgment by default was entered against the defendant, and afterwards plaintiff served notice on the defendant, that on a day therein named he would move the court to assess his damages. At the day named in the notice, the defendant, as well as the plaintiff, appeared by counsel, a j'ury was empanneled, in the selection of which defendant’s counsel participated; witnesses were sworn and examined on behalf of plaintiff and cross-examined by defendant’s counsel; evidence was offered on behalf of defendant, and his counsel moved the court-to give a certain instruction to the jury on his behalf, which the court gave. It is insisted the jurat of the notary public is insufficient to show that the return was sworn to by the special deputy, and Hochlander v. Hochlander, published in the “ Chicago Legal News,” vol. 8, p. 200, is cited in support of the objection. Since the opinion was filed in that case and published in the “Legal News,” we have had occasion to reconsider the portion quoted by counsel, and have modified the opinion by striking it out. See case as reported in 73 Ill. 618. We are of opinion that the jurat of the notary is sufficient. The reasonable implication from it is, that the deputy making the return is the party who was sworn, and that he was sworn to the return at the time of making it. Moreover, if the defendant had intended to make objection to the return, he should have done so at the time damages were assessed, before empanneling the jury. By appearing, participating in the selection of the jury, cross-examining witnesses, offering evidence, and asking instructions to the jury, he must be held to have waived all objection to the service of the summons. It would be trifling with the court to allow a party to thus appear and participate in the assessment of damages, and at the same time withhold, until such time in the future as might suit his pleasure, any objection which, if then urged, would have terminated the proceeding. Believing there is no substantial error in the record, the judgment must be affirmed. Judgment affirmed,