O'Conner v. Wilson

Citations

• 57 Ill. 226

Syllabus

<p>1. Sheriff’s return—leave to amend. Held, the true rule of practice is, that the court should grant leave to a sheriff to amend Ms return to process as a matter of course, and without notice to the party to be affected by it, only during the term at which the cause is determined,</p> <p>2. Same—-former decisions. The cases of Turney v. Organ, 16 Ill. 43, Dunn v. Rodgers, 43 Ill. 260, Moore v. Purple, 3 Gilm. 149, and Morris v. The Trustees of Schools, &c., 15 Ill. 266, in so far as they announce a different rule, modified.</p> <p>3. Same—laches. Where the application to amend was not made until nearly twelve years after the date of the return, it was held, that after the lapse of so long a time leave to the officer to amend his return should not he granted.</p> <p>4. Same—amendment of—by whom to be made. Where the return of service, upon a summons, made hy a deputy sheriff, who had since died, was thought to be defective, it not appearing that, his principal was present at the execution of the writ, and cognizant of the manner in which the service was made, and there being no sufficient memorandum made hy the former at the time the service was had by which the amendment could be made, it was held, incompetent for the latter to amend the return.</p> <p>5. Inasmuch as the return to process can onty he amended hy the facts, the amendment should be made h)r the officer who served the writ and knows the facts, or if by his principal, then from a memorandum made hy the deputy at the time he served the writ, and which clearly and unmistakably states the facts omilted in the return.</p> <p>6. Same—presumption as to tcho served the writ. It will he presumed that the officer making a return served the writ or did what the return states was done. It can not be presumed that when a deputy sheriff says in the return the service was made hy him, that the writ was executed hy his principal, or that the latter was present and cognizant of what was done, or the manner in which th