McNab v. Bennett

Citations

• 66 Ill. 157

Syllabus

<p>1. Practice&emdash;when motion to dismiss is proper. Motions to dismiss, which assume the office of a plea in abatement, will not be entertained unless the objection appears upon the face of the papers. If other objections are to be considered, they must be presented by plea in abatement, so that an issue of fact can be made and tried.</p> <p>2. Abatement—where defendant is sued out of his county. Where the plaintiff fraudulently caused the issue of a warrant upon a false complaint, charging the defendant with a crime, and had him arrested and forcibly taken from the county of his residence to another county, for the purpose of having civil process there served upon him: Held, that a plea in abatement could have been properly framed in such a case, but that the suit could not be dismissed, on motion, for such cause, the objection not appearing on the face of the papers.</p> <p>3. Service—when a defendant may be served, in county where, found. If a defendant voluntarily leaves his residence, and goes to another county, or if seized, when properly chargeable with crime, and taken to another county, he may be said to be found there, within the sense of the words used in the statute making it unlawful to sue a defendant out of the county where he resides or may be found; but it would be a perversion of the object of the law to permit an arrest upon false and fraudulent pretences, and the abduction of the defendant, for the sole purpose of obtaining service upon him in a civil proceeding.</p> <p>4. Service op process—am, arrrest on a capias without reading is not, where the defendant is discha/rged. Where the defendant in a civil suit was arrested illegally out of his county upon a capias ad respondendum, from which arrest he was discharged on habeas coipus without giving bail for his appearance, and the sheriff’s return upon the process was, “ I have executed the within writ by arresting the defendant, who is now in jail Held, that the defendant was not brought into