The opinion
Mr. Justice Lawrence delivered the opinion of the Court:
This suit was originally brought in the Circuit Court of Cumberland county, at the October term, 1862, against five defendants, Apperson, Alton, Brown, Balch and Eichstein. There was service upon the first three, but not upon the others. On the '3d of October an alias writ was issued by the clerk of the Cumberland Circuit Court against Balch and Richstein, summoning them to appear at the next April term of the Circuit Court of Cumberland county. But before this writ was issued the venue of the cause had been changed to Effingham county. The venue was subsequently changed from Effingham to Douglas county, and there a judgment was rendered by default against Balch, and on demurrer to the declaration, against Apperson, Albin and Brown.
It is clear that the Circuit Court of Douglas county had acquired no jurisdiction over Balch. The only summons ever served upon him issued from the Circuit Court of Cumberland county, and was returnable to that county. By that summons he was brought into that court at the April term, 1863. The order for a change of venue previously made had no force or effect as against him. As to him it was an utter nullity, because the court had acquired no jurisdiction over him when it was made. Even if informed of its existence, when brought into court at the April term, he was under no obligation to regard it, as the Circuit Court of Cumberland county could not give the Circuit Court of Effingham county a jurisdiction which it had not itself acquired. It could make no valid order transferring him to another county for adjudication upon his rights, until he had been in some way brought under its control. Since, then, the order changing the venue was inoperative as to him, and as he never entered his appearance nor was again served, the judgment" against him was improperly rendered.
There was also error in the judgment overruling the demurrer. The first count of the declaration sets forth a bond payable to the plaintiff without condition. The other counts set out the condition. It was decided in Patrick v. Rucker, 19 Ills., 439, that such a declaration was demurrable.
Before proceeding to another trial the Sheriff should amend his return, so as to show whether the defendant Richstein was or was not served. The judgment is reversed and the cause remanded.
Judgment reversed.