Calhoun v. Webster

Decided June 15, 1840

Illinois Supreme Court · decided 1840-06-15

<p>Error to Sangamon.</p> <p>Where more than a term intervenes between the test and return day of original process, the writ is a nullity. Where a summons was issued on the 6th of November, 1839, and made returnable “ at the next term to be holden on the third Monday of November next," and at the November term, 1839, a judgment was rendered by default, it was reversed on error.</p>

Cited by 2 later decisions — most recently August 1916

2 state decisions

Relies on People ex rel. Macey v. Hillsdale

Good law ✅— No negative treatment on recordhow we know

Decided 1840-06-15

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Lockwood, Justice,

¶1delivered the opinion of the Court: (2)

¶2It appears from the record in this case, that the summons was dated the 6th Nov. 1839, and returnable at the next term, to be holden on the third Monday in the month of November next. The process was served on the defendant, on the 7th of November, 1839, and judgment was taken by default, at the November term, 1839, which was holden on the third Monday of said month. The only question is, whether this judgment was regular.

¶3It has repeatedly been held, that where more than a term intervenes between the test and return of original process, the writ is a nullity. (3) The writ being absolutely void, the cause is out of Court. It was consequently irregular to enter judgment by default. The judgment is reversed with costs.

¶4Judgment reversed.

¶5Note. See Beaubien v. Barbour, 1 Scam. 386.

¶6 Smith, Justice, was not present at the argument of this cause.

¶72 Johns. 190 ; 3 Wilson 341; 2 Blac. R. 845.