Union National Bank v. First National Bank

Mr. Justice Scholfield delivered the opinion of the Court: This court, in Mineral Point Railroad Co. v. Keep, 22 Ill. 9, laid down the doctrine that where it is denied that process was served upon the agent of a corporation, as the return of the sheriff shows, the fact must be put in issue by a plea in abatement. And again in Holloway et al. v. Freeman, id. 197, it was held that where it is designed to put in issue the return of the sheriff, it must be by plea in abatement. More recently, in Sibert v. Thorp, 77 Ill. 43, on review of the previous decisions, it was held that the sheriff's return of service on an original process does not import absolute verity, but is only prima facie evidence of the truth of the matters therein recited, and, consequently, may be put in issue, before judgment, by plea in abatement. In the Protection Life Insurance Co. v. Palmer, 81 Ill. 88, there are expressions which intimate a contrary rule. There was no design in that case to overrule the previous decisions, and those expressions are to be regarded as obiter dicta only. The defense attempted to be interposed by appellant is one that may be properly interposed by plea, but it can only be done by one filed at the earliest opportunity; and on the authority of Holloway et al. v. Freeman, supra, we must hold that appellant did not plead this defense in apt time, but here, as there, he waived it by interposing an insufficient motion. The judgment is affirmed. Judgment affirmed.