Sibert v. Thorp
Illinois Supreme Court
Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding. This was an action of assumpsit, by William W. Thorp, against Jeremiah Sibert and Jeriel Wildav, upon a promissory note.
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Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding. This was an action of assumpsit, by William W. Thorp, against Jeremiah Sibert and Jeriel Wildav, upon a promissory note. The defendant Sibert, whom the sheriff’s return showed was alone served with the summons, pleaded in abatement that at the time of the commencement of the suit he was a. resident of Morgan county, Illinois, and was not, at the date of the commencement of the suit, found in the county of Morgan, and that process issued to the sheriff of Morgan county was served upon the defendant in the…
1Opinion of the CourtJustice Scholfield
The question presented by the record in this case is, can the defendant, by pleading, raise an issue of fact on the return of a sheriff, endorsed on a summons, in the discharge of his official duty?
The old common law authorities seem to answer the question in the negative. Comyn, in his Digest (title “Return,” “G,”) savs: “No averment can be taken in pleading against the sheriff’s return. 15 East, 378. If false, the remedy is by action. Lofft, 371.” And to the same effect is Allen on Sheriffs, 371. But in this country, many courts have held that the sheriff’s return, on original process, is…
2Cases cited5 opinions
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- Union National Bank v. First National BankIllinois Supreme Court · 1878
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