McBane v. People ex rel. Stout

Citations

• 50 Ill. 503

Syllabus

<p>1. Service of process—waiver of irregularities. Where an alternative writ of mandamus was served upon the individual members of a county court, when that court was not in session, and a regular term of the court did not intervene between the day of service and the return day, such irregularity in the service would be waived, by the members of the court appearing and making return to the writ, even though such irregularity was set down in the return, as one of the reasons why a peremptory writ should not be granted.</p> <p>2. Same—how such irregularity availed of. Such an irregularity in the service of an alternative writ, could only be availed of as a ground for continuance, until the county court would be in session, that it might determine what defense the county would make.</p> <p>8. Judgment, awarding execution against the county, not void. Where in rendering a judgment against a county, the court awarded execution, such award is not an error, which of itself would render a judgment otherwise valid, void ; nor can such judgment be questioned in a collateral proceeding, but the error can only be availed of in a direct proceeding to reverse the judgment.</p> <p>4. Venue—change of—in a suit against a county. Under the statute authorizing counties to be sued, such suit must be brought in the circuit court of the defendant county, but when so brought, like all civil actions, it may be removed by a change of venue to a foreign county, where the statutory causes authorizing it are alleged to exist.</p> <p>5. Suit against a county—in what court it must be brought—of a proceeding by mandamus. A proceeding by mandamus is a suit, within the meaning of the statute, which requires all suits against a county to be brought in the circuit court of the county being sued, and therefore must be commenced in that court.</p>