Reinhardt v. Kennedy

Mr. Presiding Justice Waterman delivered the opinion of the court. ■The record does not show, as is insisted, that the trial in the justice court, at which only one of the defendants, Louis Reinhardt, appeared, was had before the expiration of an hour from the time of day at which the summons was made returnable. If the return of the execution by the constable “ no property found ” had been made by direction of the plaintiff, it would have been insufficient to have warranted the justice in certifying the judgment to_the clerk of the Circuit Court. As was said by the Appellate Court in Pecos v. Olson, 63 Ill. App. 316, no presumption is to be indulged in favor of a sheriff, when he acts, not of his own volition, but in obedience to the direction of the plaintiff in the writ. Ordinarily, it is presumed that the "sheriff or constable making a return of a writ intended to make a legal return, and if the language used by him in such return fairly admits of a construction which will make his return legal and sufficient, it should be so construed. 2d Ed. of Freeman on Execution, Sec. 362; Oogwells v. Warren, Federal Cases, 2958; Phillips v. DeMoss, 14 Ill. 410. A creditor’s bill may be filed upon the return of an execution nulla bona, although it do not appear that any demand was made upon the defendant, and the return be made by him upon the day the execution is received by the officer. Young v. Clapp, 40 Ill. App. 312, 318; Scheubert v. Honel, 50 Ill. App. 597-598. In Heffly v. Hall, 24 Tenn. (5th Humphrey), 581, it was held that a return by the officer of an execution against two defendants, the word “defendant” used by the officer in his return must be held to be nomen collectivum, and to mean “defendants.” The Circuit Court' properly denied the motion of plaintiff in error and its action in so doing is affirmed. Mr. Justice Burke took no part in the determination of this case.