Metzger v. Huntington , 1893 Ill. App. LEXIS 593 ( 1893 )

Me. Justice Gaby

delivebed the opinion of the Coubt.

This was an action upon a judgment in Indiana, in favor of the defendant in error against the plaintiff in error, who pleaded in abatement that he was not served with process in this action.

The jury found against him upon evidence conflicting, it is true, but which upon one side justified the conclusion that the summons was read in his hearing, though the officer addressed himself to Metzger’s clerk; both the clerk and Metzger being aware that the officer thought that the clerk ivas Metzger. Eo authority is cited or argument made that evidence of such service would falsify the return of service.

It is doing no violence to the English language to say that what is read in the hearing of several persons, is read to all of them, even though the reader addresses only one specially.

The plaintiff in error asked, and excepted to the refusal, of this instruction:

“ The jury are instructed that if you believe from the evidence that John G. Campbell was a legally appointed deputy sheriff, and was acting in that capacity upon the seventh day of April, 1893, and that upon that day he read the summons introduced in evidence to George Robertson, a bookkeeper in the office of William G. Metzger, and at that time, nor at any other time did he read said writ to William G. Metzger, then your verdict should be for the defendant.”

This was rightfully refused even if it meant what it was" intended to mean; but “ at that time, nor at any other time, did he read,” etc., are not words that negative reading “ at that time;” probably the writer meant to put “ neither ” before them. The serious question of law in the case arises upon the verdict and subsequent action of the court.

The verdict was: “We, the jury, find the issues for the plaintiff.” Had the action been for damages, this verdict would have been a nullity, as the same jury should have assessed them. Boggs v. Bindskoff, 23 Ill. 66; Moeller v. Quarrier, 14 Ill. 280.

These are cases under former statutes when the traverse of the affidavit in attachment ivas in abatement, but the same rule obtains Avhen the summons is attacked for extrinsic matter in abatement. Green v. Young, 120 Ill. 184.

Strictly, even on an indictment for a misdemeanor, if the defendant plead in abatement, and it be found against him, that is the end of his defense, and the court proceeds to judgment. Schram v. People, 29 Ill. 162.

Here the action was not for damages, but for a debt of record. With the existence of that record the jury had no concern. It Avas a matter upon AArhich the court only could pass. 2 Tidd, 741 et seqr., and notes.

The jury having done all for Avhich they were competent, it necessarily f olloAved that the court must do the rest. Rust v. Frothingham, Breese, 331.

These views dispose of all questions made in the case and the judgment is affirmed.