Coursen v. Hixon , 78 Ill. 339 ( 1875 )

Mr. Justice Breese

delivered the opinion of the Court:

This was a motion, in the Superior Court of Cook county, by the plaintiff in error, to set aside a judgment rendered by default against himself and one John B. Young, and in favor of Hixon and Rodbourn, plaintiffs.

It appears, plaintiff in error was jointly sued in the action with John B. Young, and at the March term, 1874, a default was taken against him, and judgment rendered against him for damages, the judgment entry reciting that process was personally served upon him.

Afterwards, on the 13th of March, 1874, a scire facias was issued, to make plaintiff in error a party to the judgment, which was returned without any indorsement thereon.

On the 16th of June, thereafter, an alias sci.fa. was issued for the purpose, in the usual form, returnable on the first Monday of July term. On the back of this writ is found this: “I hereby appoint and deputize William E. Cook a special deputy sheriff, to serve the within writ. Dated 26th June, 1874. T. M. Bradley, sheriff.”

On this writ is this return, verified by the affidavit of William E. Cook : “Served the within writ of scire facias on the within named defendant, A. G. Coursen, by reading the same to him, on the 26th day of June, A. D. 1874. T. M. Bradley, sheriff, per William E. Cook, special deputy.”

On July 10th, at the July term, a regular default was entered against Coursen, and he was made a party to the judgment.

One year thereafter, at the July term, 1875, the motion now before us was made by Coursen, to set aside this judgment,. which being denied, he brings the record here.

Plaintiff in error complains, that the record does not show the Superior Court had acquired jurisdiction of John B. Young, at the time judgment was rendered against him. The judgment recites due service of process on Young ten days before the first day of the term, and there is nothing in the record to impeach or contradict this. To all appearance the judgment was regular against Young. Timmerman v. Phelps, 27 Ill. 496.

Plaintiff further complains, that a special deputy could not be appointed to serve the sci. fa. upon him, and that he was not properly sworn as a deputy.

By section 10, of ch. 125, title “Sheriffs,” R. S. 1874, it is provided, a sheriff may appoint a special deputy to serve any summons issued out of a court of record, by indorsement thereon, substantially as follows : “I hereby appoint--my special deputy, to serve the within writ.” Dated and signed by the sheriff. This requirement was precisely observed by the sheriff'in this case.

Section 11 requires the special deprnty shall make return in the time and manner of serving the writ, under his oath, which was done in this case. This is the only oath the special deputy is required to make.

Plaintiff contends a scire facias is not a summons. It is that and nothing more. The statute, ch. 110, title “Practice,” provides, in a case like this, where judgment has passed against one joint defendant, that “a summons, in the nature of a scire facias, against the defendant not served, may issue,” etc. R. S. 1874, p. 776.

But a full answer to all the points made by plaintiff in error is, that his motion to set aside the judgment comes too late. Such a motion can not be made after the term at whi.ch the judgment was rendered. Cook v. Wood, 24 Ill. 295, and subsequent cases; Windett v. Hamilton, 52 ib. 181.

The citation from Eevised Statutes, giving to a motion the same efficacy as a writ of error coram nobis, does not change the law of those cases cited. The only object of this legislation was, to dispense with this old writ.

There is no error apparent in this record, and the judgment must be affirmed.

Judgment affirmed.