Parker v. Scheller

Mr. Justice Waterman delivered the opinion oe the Court. This is a writ of error brought to reverse a default judgment obtained by the plaintiff below in an “ attachment in aid ” proceeding in which the publication was made and the notice mailed nearly three years after the affidavit of non-residence was filed. The notice recites an attachment dated December 5, 1892, is entitled April term, 1895, and requires the defendant to appear on the first Monday of May, 1895. The defendant was never served with process, nor did he appear. Proceedings by way of attachment being in derogation of the common law, to be binding must be in strict accordance with the statute. The requirement that notice shall be published, and a copy thereof mailed to the residence of the defendant, is that he may be informed of the pendency of the suit; so as to appear and defend the same, if he sees fit. The statement required to be filed as to the residence of the defendant, is of his residence when such affidavit is made; to such residence notice is to be sent. To withhold the sending of notice for more than twro years, is not a compliance with the statute, and such notice gives the court no jurisdiction to proceed against any property of the defendant. The statute provides: “Upon the return of attachment issued in aid of actions pending, unless it shall appear that the defendant or defendants have been served with process in the original cause, notice of the pendency of the suit and of the issuance and levy of the attachment, shall be given as is required in cases of original attachment; and such notification shall be sufficient to entitle the plaintiff to judgment, and the right to proceed thereon against the property and estate attached, and against garnishees, in the same manner and with like effect as if .the suit had been commenced by attachment.” The clerk, upon such return, should, within a reasonable time, make the publication and mail the notice provided by this statute. Two years is not a reasonable time for this. ' In Campbell v. McCakan, 41 Ill. 45, it is held that an affidavit of non-residence, made twenty days before a bill is filed, is not good and fails to confer jurisdiction. In Baldwin v. Ferguson, 35 Ill. App. 393, the affidavit stated the place of residence of the defendant “at the date of the issuing of the original writ,” which was in fact two years before the affidavit was made, and it was held that the court had no jurisdiction. In Dennison v. Blumenthal, 37 Ill. App. 387, and 142 Ill. 45, it was held that a notice mailed to “ A. T. & F. W. Dennison,” was void as to both. As the court below never had jurisdiction either of the property or person of the defendant, the judgment will be reversed without remanding the cause. Ditch v. Edwards, 1 Scam. 127.