Firebaugh v. Hall

Citations

• 63 Ill. 81

Syllabus

<p>1. Attachment—jurisdiction—presumption. In attachment cases, jurisdiction is conferred by special grants from the legislature, and the doctrine of presumptions, as applicable to courts in the exercise of their common law powers, does not and can not apply. Their jurisdiction must affirmatively appear on the face of the proceedings.</p> <p>2. Same—in aid of sei. fa. to make party to judgment—jurisdiction. Under the act of 1861, an attachment in aid of & scire facias to make a person a party to a judgment, can be had only when obscure facias has been issued. Until it is issued the circuit court has no jurisdiction of an attachment in aid thereof, because there is nothing on which to base it,—nothing to which it can attach in aid thereof.</p> <p>3. Same—notice by publication—requisites. Service of the writ by levy on property gives the court jurisdiction over the property only. To acquire it over the person of the defendant, there must be actual, or constructive notice by publication, and where the writ is in aid of a scire facias to make a party to a judgment, it seems that the published notice, in order to confer jurisdiction, should refer to the original suit, so as to apprise the party of the existence of the judgment against his co-defendant. .</p> <p>4. Judgment—void for want of jurisdiction. In this case it appeared that suit was brought against A and B upon a note, in 1860, and. service being had upon A only, judgment was rendered against him, and a scire facias ordered to issue against B, which, however, was never in fact issued.</p> <p>After the passage of the act of 1861, amending the attachment law, an attachment was sued out against B and levied upon his lands. Notice by publication was given, but it contained no reference to the prior proceeding or to the scire facias. Upon this notice, there being no personal service or appearance, judgment was rendered by default, making B a party to the original judgment, and awarding special executionfor the sale o