Cooke v. Haungs , 113 Ill. App. 501 ( 1904 )

Mr. Justice Baker

delivered the opinion of the court.

At the September term, 1902, of the Circuit Court, appellee entered the default of appellant and obtained a final decree against her and others for a mechanic’s lien for $176. Appellant at the same term moved the court to set aside the default and vacate the decree as to her and grant her leave to plead, demur or answer. In support of her motion she filed several affidavits from which it clearly appeared that the person with whom a copy of the summons was left for appellant was not a member of the family of appellant, nor was such copy left at the usual place of abode of appellant, as stated in the return of the sh vriff, and that appellant had no knowledge of such attempted service until after the decree was entered and then promptly moved to vacate the same. The court continued the hearing of appellant’s motion to the October term and then denied it, and from the order denying the motion this appeal is prosecuted.

The strict rule of the common law as to the conclusiveness of the return of service of summons or other process, by a sheriff or other officer, has been somewhat relaxed. In Scrafield v. Sheller, 18 Ill. App. 507-506, Mr. Justice McAllister said: “We hold that while the officer’s return cannot be contradicted so as to defeat jurisdiction, yet it may be done to excuse a default.” In Sibert v. Thorp, 77 Ill. 43, Mr. Justice Scholfield, after stating the old rule that “ no averment can be taken in pleading against the sheriff’s return,” said: “ But in this country many courts have held that the sheriff’s return on original process is only prima facie evidence of the facts recited and consequently may be shown to be incorrect.” And in that case it was held that the truth of the matters stated in a sheriff’s return of service of original process, might be put in issue by a plea in abatement. In Brown v. Brown, 59 Ill. 315, it was held error to overrule a motion to set aside a default, where the affidavits showed that the person with whom the copy of the summons was left for the defendant, was not a member of defendant’s family. To the same effect is Kline v. Kline, 104 Ill. App. 274.

The contract set out in the bill does not provide that the work shall be completed or payment therefor made within a year, and was therefore defective. Williams v. Rittenhouse & Embree Co., 198 Ill. 602; Pugh v. Wallace, 198 Ill. 422; Kelly v. Northern Trust Co., 185 Ill. 172. As the bill was defective, appellant was not required to state in her affidavit, facts constituting a defense to the bill.

The order appealed from will be reversed and the cause remanded to the Circuit Court, with directions to that court to vacate the decree and set aside the default as to the defendant, Mary E. Cooke, with leave to her to demur oí plead to or answer the bill.

Reversed and remanded.