Allegretti v. Stubbert

Mr. Justice Bali, delivered the opinion of the court. It will be seen that the motion to quash the writ and to dismiss the suit was based upon the allegations of the petition and the transcript and return of the justice. The motion goes to the merits and not to the jurisdiction of the court. It admitted the truth of the allegations of the petition and challenged them for insufficiency. It operated precisely as if it were a demurrer to the petition. Such a motion can properly be made by a respondent who has entered a general appearance. The transcript of the justice is sufficient. It conforms to the provisions of Section 1 of Article X of the Act of 1895, entitled “ Appeal and Certiorari^ The summons accompanying the transcript is presumably the original summons and the only paper in the case necessary to be sent up, since the justice certifies that the transcript and the papers accompanying it “ contain a full and perfect statement of all the proceedings before me,” and there is nothing in the record to rebut the presumption that the justice did his duty in this regard. The only contradiction to the return of the officer that he served the writ on the plaintiff in error is that contained in the petition for the writ. It admits that the constable appeared before him and made a pretense of reading from what purported to be a writ “ by mumbling and muttering in an indistinct and unintelligible tone.” Plaintiff in error did not ask the officer to read more distinctly or to tell him the contents of the writ. He seemed as satisfied with the result of that interview as was the officer. He had the chance to learn the name of the justice and the time and place of the trial, but he neglected to do so. Such a contradiction is insufficient. In Fitzgerald v. Kimball, 86 Ill. 396, where the writ of certiorari was quashed, the indorsement on the summons, duly signed by the constable, stated that he had served the same on the defendant. The statements of the petition in an argumentative recital attempted to show that there was in fact no service of this summons. The court say: “ The law does not permit a party, in such case, to contradict the return of the officer. This return must be treated as absolutely true, and, if true, the appellant was guilty of negligence in not making his defense, if any he had, before the justice of the peace.” The judgment of the court below was affirmed. We do not understand that the Supreme Court in the case just cited intended to decide that the return of service by the officer is absolutely conclusive of. that fact, and that it can never be contradicted. The facts of the case do not call for such an interpretation of the opinion; but it is clear that in all cases where there is an argumentative denial only, the return of the officer must prevail. Kochman v. O’Neill, 202 Ill. 110, cited by plaintiff in error, is not in his favor. That was a bill to enjoin'the collection of a judgment and for new trial, upon the allegation, among other things, that complainant had never been served with summons- in said cause. The court say: “A sound public policy, the security of litigants and the stability of legal proceedings, demand that the return of the sworn officer shall not be set aside or impeached except upon satisfactory evidence. Every presumption in favor of the return is indulged, and it will not be set aside upon the uncorroborated -testimony of the party upon whom service purports to have been made. (Davis v. Dresback, 81 Ill. 393). Justice, however, requires that the rules should not be so strict as to prevent all relief against a return which is untrue through fra.ud, accident or mistake, and if it is clear from the evidence that the defendant has not been served, the judgment should be set aside.” The court then finds from the evidence it was clearly proved that-the alleged service was made upon a person other than the defendant. In the case at bar the only evidence contradicting the return is that of the plaintiff in error, and, as he recites the interview between himself and the officer, it is far from clear that a sufficient service was not then had upon him. We do not regard the other contentions of the plaintiff in error as material. The judgment of the Circuit Court is affirmed. Affirmed.