Ryan v. Lander

Plea denying officer's return—must be verified. A plea in abatement, contradicting an officer’s return of service upon a defendant in the county where the suit is brought, and setting up that the service was in another county, where the defendant resided at the time, is properly stricken from the files, if not verified by affidavit.

Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. This was an action of covenant, brought by Lander, against the Brewers’ Insurance Company of Milwaukee and Ryan. A summons was issued to the sheriff of Cook county. The sheriff returned the same with this indorsement: “Served this writ on the within named E. E. Ryan by reading the same to him the 31st day of October, 1876, the other defendant not found in my county.” The declaration having been duly filed, defendant Ryan, at the return term, pleaded to the action, that he is and was a resident of Will county, and not of Cook county; that he was not found in Cook county nor served with process in Cook county, but was found and served in the county of Will, and not elsewhere; .that his co-defendant resides in Wisconsin, and was not served with process in Cook county. On motion of plaintiff’s attorney, this plea was ordered by the court to be stricken from the files, and it was ordered that defendant Ryan should plead to the merits within four days. Failing to plead over, judgment, for want of a plea, was entered against Ryan, and from this judgment Ryan appeals to this court.