Willard v. Zehr

Mr. Justice Wilkin delivered the opinion of the court: A motion has been made by the defendant in error to dismiss the writ on the ground that the judgment does not exceed $1000, and that as there is no certificate of importance from the Appellate Court the judgment of that court is final. Section 8 of chapter 37, (Hurd’s Stat. 1903, p. .569,) with reference to the jurisdiction of the Appellate Court, provides that in all cases where there was no trial on an issue of fact in the lower court, appeals and writs of error shall lie from the Appellate Court to the Supreme Court where the amount claimed in the pleadings exceeds $1000. We have held that the issue of fact referred to in this section means an issue of fact made under' our practice in courts of record by the formal written pleadings of the parties,—that is, a single, certain, material point arising out of the allegations of the parties and generally made by an affirmative allegation and denial. Whenever the parties come to a point in the pleadings which is affirmed on one side and denied on the other they are said to be at an issue, and when a material fact is thus affirmed and denied an issue of fact is formed for trial, and its determination usually results in a judgment for one party or the other. In this way only, as a general rule, can an issue-of fact be formed for trial. (Washington v. Louisville and Nashville Railway Co. 136 Ill. 49; Gottfred v. Woodruff, 193 id. 491; Gould’s Pl. 279.) Under this definition no issue of fact was tried by the lower court. There was a demurrer to the plea which was sustained, and defendant electing to stand by his demurrer, judgment was entered by default for $955.75. The amount claimed in the declaration was $1500, and therefore an appeal lies to this court. (Murphy v. Murphy, 207 Ill. 250.) The motion to dismiss will accordingly be denied. The question next presented for our decision is as to the sufficiency of the plea. The suit was commenced in a court of general jurisdiction. The rule is, that any defect in a writ, its service or return, which is apparent from an inspection of the record, may properly be taken advantage of by a motion; but where the objection is founded upon extrinsic facts the matter must be pleaded in abatement, so that an issue may be made and tried by a jury like any other issue of fact. Greer v. Young, 120 Ill. 184. Section 2 of chapter no (Hurd’s Stat. 1903, p. 1400,) provides that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides “or may be found,” except in certain cases therein specified, not material to be considered here. The defendant was found and duly served in Tazewell county, and we have held that unless he was there by reason of some fraud, artifice or trick on the part of the plaintiff, or some one acting for him, in order to obtain service upon him, he was properly found within that county, within the meaning of the statute. Cassem v. Galvin, 158 Ill. 30; Greer v. Young, supra; McNab v. Bennett, 66 Ill. 157. As the circuit court of Tazewell county is one of general jurisdiction and the want of jurisdiction did not appear upon the face of the record, it could only be raised by a plea in abatement, as above stated. The law has always required great accuracy arid precision in the structure and form of such pleas. They must be certain to every intent, and if to the jurisdiction of the court, there must be proper averments of facts, accurately and logically stated, excluding every intendment of jurisdiction. The presumption will be in favor of the jurisdiction, and the pleader must set up such facts as would clearly oust the court of jurisdiction. Presumptions, deductions, arguments, inferences and conclusions are not sufficient. (Parsons v. Case, 45 Ill. 296; Diblee v. Davison, 25 id. 403; Humphrey v. Phillips, 57 id. 132; 1 Chitty’s Pl. 395.) Does the plea aver that the defendant was not found in Tazewell county within this rule of pleading? We think not. True, it states with certainty and definiteness that he was a resident of Jasper county,. State of Missouri, and that he was not, at the time he was served, voluntarily in said Tazewell county but was there under arrest, and had been brought from his home in Missouri under arrest upon a capias issued out of the county of Tazewell; but these facts were not sufficient to exempt him from service of summons in the county in which he was in fact found. (McNab v. Bennett, supra; Cassem v. Galvin, supra; Greer v. Young, supra; Brewster v. Scarborough, 2 Scam. 280; Semple v. Anderson, 4 Gilm. 546.) He was required to go farther, and show that he was not properly charged with the crime for which he was arrested and brought into the said county. This he attempted to do by subsequent averments that the indictment charging him with larceny of the horse was “wrongfully, fraudulently, deceitfully and designedly procured” to be returned by the grand jury by the “wrongful, unlawful, fraudulent and deceitful connivance, procurement, assistance, direction, counsel, aiding and abetting of said plaintiff,” etc., for the purpose of bringing him into the said county, within the jurisdiction of said court, etc., and that after the service upon him they caused said indictment to be' dismissed out of court. It will be' seen that the averment that the indictment was “wrongfully, fraudulently, deceitfully and designedly procured” rests upon no alleged fact as to the acts and conduct of the plaintiff. Unaided by presumptions, arguments, inferences and conclusions, it amounts to nothing in a plea to the jurisdiction of the court and is no more than the conclusion of the pleader. There is in the plea no averment that the defendant was not guilty of the crime charged in the indictment upon which he was arrested, or that the plaintiff, and those with whom he is charged to have acted, appeared before the grand jury, .or caused others to do so, and there falsely charged him with the crime. Counsel for the plaintiff in error say that an indictment against the defendant in error and those with whom he acted, charging them with conspiracy to do an illegal act or an act in an unlawful manner, alleging the offense in the language of this plea, would be sufficient. Even if that should be admitted, it does not follow that the plea is sufficient to oust a court of general jurisdiction of the power to try a defendant found and served with process within its territorial jurisdiction. We concede that it is never necessary for a party to plead the evidence of facts averred, but enough of the facts themselves relied upon as sustaining the cause of action or defense must be alleged to enable the court to determine their sufficiency. It is also urged that the objections to the plea could only be raised by special demurrer, and that the particular grounds assigned were insufficient. The objections above pointed out go to the substance of the plea and certainly could be reached by general demurrer. In fact, the general rule is, that all objections, to pleas of this kind, whether of form or substance, can be raised by a general demurrer. Finch v. Galigher, 181 Ill. 625. The circuit court did not err in sustaining the plaintiff’s demurrer to the plea, and the Appellate Court properly affirmed the judgment. Judgment affirmed.