Aspern v. Lamar Insurance

McAllister, J. This is an appeal by the defendant below from the judgment of the Superior Court of Cook county, taken against him by default, when the only means of acquiring jurisdiction of his person was by a summons issued to the sheriff of Champaign county, and there served, which defendant at the same term moved to set aside. If the law authorized the issuing ,of summons to and the service thereof in that county, then the judgment is regular; otherwise, not. As the statute was at and prior to May 22, 1877, it declared 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 local actions, and except that in every species of personal actions in law, where there is more than one defendant, the plaintiff, commencing his action where either of them resides, may have, his writ or writs issued directed to any county or counties where the other defendants, or either of them, maybe found.” Then followed the proviso: “ That if a verdict shall not be found or judgment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend.” R. S. 1874, § 2, 775. This statute being in force May 22,1877, an act was approved entitled: “ An act to amend section 25 of an act entitled ‘An act concerning corporations,’ approved April 18, 1872.” The body of this section, as amended, related to the winding up of insolvent corporations, providing for the appointment of receivers, and the enforcement of the liability of stockholders, by suits in equity, the section closing with this provision: “In all cases of suits for or against such receiver or the corporation of which he may be receiver, writs may issue in favor of such receiver or corporation, or against him or it, from the county where the cause of action accrued, to the sheriff of any county in the State for service.” The previous part of this section speaks only of suits in equity, and it is a fair construction of the whole section that the legislature had in mind only such suits in the clause just quoted. The only words that derogate from that construction are the words, “ where the cause of action accrued.” Construed in a technical sense, those words might seem to relate to actions at law, and embrace them; but it certainly could not have been the intention of confining that provision to actions at law exclusively; and from the context the better construction is that the provision was intended to apply to suits in equity only, and to enlarge the provisions of section three of the chancery code, (R. S. 1874, p. 198), which is a separate system; the statute first above mentioned relating exclusively to actions at law. But to make it sure, as we construe the action of the legislature, that this act approved May 22,1877, should not have the effect to change the practice in respect to actions at law, another act was subsequently, on May 29, 1877, approved, which reenacted the act first above mentioned. How, it is too clear to admit of argument, that if the provision in question of the act approved May 22, 1877, be construed to embrace actions at law, that approved May 29, 1877, is directly repugnant to it. The conflict is irreconcilable. The former declares that in all suits for the corporation, writs may issue in favor of such corporation from the county where the cause of action accrued, to the sheriff of any county in this State for service. The latter, 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 local actions, and except that in every species of personal actions in law where there is more than one defendant,” etc. This latter is a negative act. It is also subsequent. The rule is incontrovertible, that if a subsequent statute, contrary to a former, have negative words, it shall operate as a repeal of the former. Sedgwick on Statutes, 31. If a subsequent statute, contrary to a former act, have negative words, it shall be a repeal of the former act.” Potter’s Dwarris on Statutes, 154. Where two statutes are repugnant to each other in their provisions, the latest expression of the legislative will must prevail. Mullen v. The People, 31 Ill. 444; Dingman v. The People, 51 Ill. 279; Sedgwick on Statutes 104. Appellee’s counsel take the position that this act of May 29, 1877. should not be regarded as the latest expression of the legislative will, because it was but the re-enactment of a statnte which previously existed. "We do not concur in that position. There is peculiar significance, considering the circumstances, in the re-enacting of this statute; and, upon every principle, it must be regarded as to its effects upon the repugnant statute of May 22, 1877, with at least as much consideration and the same effect as if passed then for the first time. This action was at law, not local, and against a sole defendant, who did not reside and was not found in Cook county, where the suit was brought, but in Champaign county. This was made to appear to the court by the affidavit in support of the motion made at the same term of the judgment to set it aside, and was wholly uncontradicted. That affidavit also showed a sufficient reason why there was no appearance to set up this objection before judgment — that is, at the first opportunity. When these several matters were shown by uncontradicted proof, that the process of the court had been issued, directed to a county where defendant resided, but which was other than that in which the suit was brought, in the face of the statute prohibiting it, the court should have vindicated the law, by instantly setting the judgment aside as irregularly obtained; and it was such an abuse of discretion to refuse to do so as to require the reversal of the judgment. The judgment will be reversed and the cause remanded. Reversed and remanded.