Sangamon County IL Archives Court.....Garland, V Britton 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 12:29 pm

Source: Records Of Cases Illinois
Written: 1850

Nicholas A. Garland, plaintiff in error, v. Isaac S. Britton, defendant in 
error.

Error to Sangamon.

All process issuing from the Circuit Court, must be sealed with the judicial 
seal thereof, if there is any. If there is no seal, the clerk must affix his 
private seal, and certify that no public seal has been provided. (a)

The service of an unsealed writ is without vitality, and unless the defendant 
appears, a decree or judgment is unauthorized. (b)

This was a bill filed to foreclose a mortgage. The process served was not 
attested by any seal. At the return term, the bill was taken for confessed, 
and a decree was entered by Treat, Justice, at November term, 1847. The 
plaintiff in error now seeks to reverse the judgment of the Circuit Court, and 
assigns for error, the want of a seal to the summons.

Stuart and Edwards, for plaintiff in error. 

S. T. Logan, for defendant in error.

Treat, C. J. This was a suit in chancery to foreclose a mortgage. The summons 
issued and served on the defendant, was not under the seal of the court. The 
bill was taken for confessed, and a decree of foreclosure entered. The 
defendant sued out a writ of error. The statute declares that "all process 
issuing from the said Circuit Courts, shall be sealed with the judicial seal 
which shall be provided for that purpose; but in case there shall not be a 
judicial seal, the clerk shall affix his private seal until a public one shall 
be provided:" R. S., ch. 29, sec. 40. This statute is imperative in its 
requirements. If a court has a judicial seal it must be affixed to all of its 
process; if it has not, the clerk must use his private seal, but he ought in 
such case to certify that no public seal has been provided, for the 
presumption is that every court has a seal. The writ in this case did not 
purport to be under the seal of the court, nor the private seal of the clerk. 
It was, therefore, without validity, and the service of the same was without 
effect. The defendant not being before the court, by the service of process, 
or by appearing in the case, the decree was unauthorized, and must be 
reversed. See Hannum v. Thompson, 1 Scammon, 238, and Anglin v. Nott, ibid, 
395.

Decree reversed.

-------------------
(a) See R. S. 1845, ch. 29. sec. 40; R. S. 1874, ch. 110, sec. 1: Beaubien v. 
Sabine, 2 Scam., 457.

(b) Besimer v. The People, 15 Ill., 439, accord. A summons without the seal of 
court attached may be amended: Commissioners, etc., v. Barry, 66 Ill., 496.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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