Haywood v. McCrory

Mr. Justice Beckwith delivered the opinion of the Court:

This was a suit in personam against William C. Bane, and by attachment against Bufus Haywood, the plaintiff in error. The affidavit upon which process issued, stated that the defendants below were indebted to the plaintiff below, in the sum of forty-five hundred dollars, for which they had given their note; and that the plaintiff in error was not a resident of the State.

It is assigned for error, that the affidavit does not sufficiently describe the nature of the indebtedness.

The statute does not require the nature of the indebtedness to be described with any degree of particularity. The affidavit states the nature and amount of the indebtedness; and that is all that the law requires to be stated in regard to it. A summons to Bane was issued to the sheriff of the county where the suit was brought, and was duly served. Writs of attachment against the plaintiff in error were issued to the counties of Coles, Knox and Cook. No property was attached upon the writ issued to Coles county, and the sheriff returned the same non est inventus as to plaintiff in error. Property was levied upon under the writs issued to Knox and Cook counties. The Circuit Court of Coles county acquired jurisdiction by means of the residence of, and service of process upon Bane, in that county.

So long as he remained in that county he was not liable to be sued in any other county in the State. The present suit could not have been brought in either Knox or Cook county. Proceedings against Haywood in either of them, would have been irregular, without obtaining jurisdiction as to Bane. Before writs of attachment can be issued to counties, other than that wherein the suit is brought, the suit must be commenced in a proper county. Levy upon property or service must be made upon one or more of the defendants in such county, or no jurisdiction will be acquired. Fuller v. Langford, 31 Ill. 248 ; Hinman v. Rushmore, 27 Ill. 509 .

This suit having been properly commenced in Coles county, writs of attachment against the plaintiff in error were properly issued to other counties in the State. The commencement of the suit was the issuing of the summons for Bane, and a proper affidavit and bond having been filed, the writs of attachment against Haywood were properly issued, on the same day that the summons was issued. The record of the judgment fails to show that notice was given of the pendency of the suit as is required by the statute; and the certificate of publication on file is not such an one as the statute requires. It does not purport to be made by the printer or publisher of any newspaper; nor does it state the date of the last paper containing the notice, a copy of which is appended to the certificate. In suits by attachment where there is no personal service upon the defendant, in order to sustain a judgment the record must show affirmatively that the prerequisite of the statute in regard to notice by publication was complied with. As the record in this respect is defective, the judgment of the court below is reversed, and the cause remanded.

Judgment reversed.