Culver v. Phelps

Citations

• 130 Ill. 217
• 22 N.E. 809

Syllabus

<p>1. Process—to what term returnable. An alias summons was issued from the Superior Court of Cook county October 6,1875, returnable to the then next October term, which was the twelfth term of court thereafter, and served upon the defendant. On the 6th day of December, 1875, judgment was entered, by default, against the defendant. The summons and the return thereon being lost, the defendant filed his petition to restore the same, which the court allowed, finding that such summons was the only one served: Held, that the summons was void by reason of having been made returnable to the wrong term, and service thereof conferred no jurisdiction on the court to render the judgment.</p> <p>2. Same—recital of service—whether conclusive. Recitals in a judgment showing that due personal service of process of summons issued in the cause was had upon the defendant more than ten days before the term, may be contradicted and overcome by the record showing that the only process of summons served was void, because made returnable to a wrong term.</p> <p>3. Shebiee’s deed—under a void judgment—set aside in equity. Where land is sold on execution under a judgment which is void for want of jurisdiction of the person of the defendant, a court of equity will set aside the sale and sheriffs deed on bill filed by the defendant in the judgment, or his grantee.</p> <p>4. Res jddioata— how far conclusive. A decree restoring a lost summons, and the return of service thereon, found that such summons was the only one served on the defendant in the judgment, upon an issue presenting that question: Held, on bill to set aside a sale and sheriffs deed under the judgment, for want of jurisdiction, that such decree was res judicata, and conclusive as to the facts found therein, no matter whether it was authorized by the law and the evidence or not.</p> <p>5. Revebsad oe judgment — after sale on execution—rights of the purchaser. Where a judgment under which a sheriffs sale has been made is reversed,