{ "id": 5251725, "name": "Belle Isaacs, Plaintiff-Appellant, v. The Shoreland Hotel, Defendant-Appellee", "name_abbreviation": "Isaacs v. Shoreland Hotel", "decision_date": "1963-03-11", "docket_number": "Gen. No. 48,813", "first_page": "108", "last_page": "116", "citations": [ { "type": "official", "cite": "40 Ill. App. 2d 108" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "22 Ill 161", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5282994 ], "year": 1859, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill/22/0161-01" ] }, { "cite": "66 NE 1047", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1903, "opinion_index": 0 }, { "cite": "202 Ill 110", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 847138 ], "year": 1903, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/ill/202/0110-01" ] }, { "cite": "148 NE 42", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1925, "opinion_index": 0 }, { "cite": "317 Ill 362", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5147336 ], "year": 1925, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill/317/0362-01" ] }, { "cite": "169 NE2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1960, "opinion_index": 0 }, { "cite": "27 Ill App2d 347", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5787764 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "352-353" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/27/0347-01" ] }, { "cite": "146 NE2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "15 Ill App2d 361", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5174861 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0361-01" ] }, { "cite": "123 NE2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1955, "opinion_index": 0 }, { "cite": "4 Ill App2d 37", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5134055 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0037-01" ] }, { "cite": "106 NE2d 350", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "412 Ill 285", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664013 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill/412/0285-01" ] }, { "cite": "140 NE 836", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1923, "opinion_index": 0 }, { "cite": "309 Ill 147", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5104012 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/ill/309/0147-01" ] }, { "cite": "126 NE 732", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1920, "opinion_index": 0 }, { "cite": "292 Ill 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4981863 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/ill/292/0179-01" ] }, { "cite": "128 NE2d 706", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "6 Ill2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2707188 ], "year": 1955, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0245-01" ] } ], "analysis": { "cardinality": 657, "char_count": 12729, "ocr_confidence": 0.58, "pagerank": { "raw": 4.572219819808031e-07, "percentile": 0.9251226615914673 }, "sha256": "11ec2150cf478f0824dd9c50e15032c3e656b7f2a4409580a54546d25f34a7cb", "simhash": "1:1b03c826fe9cd77e", "word_count": 2135 }, "last_updated": "2023-07-14T19:54:49.038379+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Belle Isaacs, Plaintiff-Appellant, v. The Shoreland Hotel, Defendant-Appellee." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nPlaintiff, Belle Isaacs, appeals from an order quashing service of summons and vacating a default judgment in her favor for $25,000. Defendant\u2019s petition to vacate, under section 72 of the Civil Practice Act, was filed within two months after judgment.\nPlaintiff filed her complaint on July 17, 1961, seeking damages for personal injuries allegedly sustained while present on defendant\u2019s premises for the purpose of voting in the November 8, 1960, general election. On July 31, 1961, summons was returned by the sheriff showing that service on the defendant partnership had been obtained \u201cby leaving a copy [of the writ] with Miss Reed an agent/officer\u201d of defendant. Defendant neither appeared nor answered. On September 6, 1961, an order of default was entered on plaintiff\u2019s motion, and on September 22, 1961, after an ex parte hearing, the court found defendant guilty, assessed plaintiff\u2019s damages at $25,000, and entered judgment in her favor for that amount.\nOn October 23, 1961 (31 days after entry of the default judgment), plaintiff\u2019s attorneys wrote to defendant and its insurer seeking satisfaction of the $25,000 judgment, and on November 15, 1961, defendant filed its petition to vacate the judgment, on the ground that defendant had never been served with summons. Plaintiff answered the petition. After considering affidavits, testimony of witnesses, and arguments of counsel, the same trial judge who entered the default judgment quashed the service of summons and vacated the. judgment, and also ordered that defendant\u2019s petition to vacate stand as its appearance and directed it to answer the complaint. Plaintiff appeals.\nThe only question presented is whether valid service of summons was obtained on defendant. It is accepted in Illinois that \u201cwhere a defendant has not been served with process, the court has no jurisdiction to enter a judgment against him.\u201d Janove. v. Bacon, 6 Ill2d 245, 249, 128 NE2d 706 (1955).\nAlthough it was the rule under a former version of section 72 that a sheriff\u2019s return could not be contradicted, in a suit at law, by matters de hors the record (Chapman v. North American Life Ins. Co., 292 Ill 179, 126 NE 732 (1920); Marabia v. Mary Thompson Hospital, 309 Ill 147, 140 NE 836 (1923)), since the recent case of Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350 (1952), and its codification in the 1955 revision of section 72, a petition under section 72 is addressed to the equitable powers of a court and is appropriate to question service of summons, and the sheriff\u2019s return may be contradicted by facts not before the court in the original case. Lichter v. Scher, 4 Ill App2d 37, 123 NE2d 161 (1955); Pyle v. Groth, 15 Ill App2d 361, 146 NE2d 219 (1957); Jansma Transport, Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829 (1960).\nHowever, in Illinois the sheriff\u2019s return is prima facie proof of service and can be overcome only by clear and convincing proof (Marnik v. Cusack, 317 Ill 362, 364, 148 NE 42 (1925)), since \u201ca sound public policy, tbe security of litigants and tbe stability of legal proceedings demand tbat the return of tbe sworn officer shall not be set aside or impeached except upon satisfactory evidence. Every presumption in favor of tbe return is indulged, and it will not be set aside upon tbe uncorroborated testimony of tbe party upon whom service purports to have been made.\u201d Kochman v. O\u2019Neill, 202 Ill 110, 112, 66 NE 1047 (1903).\nTbe question thus resolves itself to whether tbe trial court\u2019s decision tbat no service was bad upon defendant is supported by clear and convincing evidence in tbe record.\nPursuant to paragraph (2) of section 72, defendant\u2019s petition was supported by affidavits \u201cas to matters not of record\u201d in tbe default proceeding. Among these affidavits were those of tbe six women who comprised all female employees of defendant whose duties required or justified their presence on tbe main floor of tbe hotel on July 31, 1961. Each such affiant averred tbat \u201cneither on July 31 or at any other time in tbe year 1961 was she served with any summons or other legal paper\u201d; tbat \u201cshe denies any conversation with anyone about such a summons on or about July 31, 1961\u201d; and tbat she has never \u201cbeen known by the names Miss Reed or Mrs. Reed and denies tbat she ever told anyone tbat such was her name.\u201d Defendant\u2019s petition was also supported by tbe affidavits of tbe two partners, and of tbe hotel manager and tbe hotel auditor. Each of said affiants denied service of tbe summons upon himself or receipt of tbe summons from any other person.\nTbe hotel auditor, Mr. Ward A. Reed, stated in bis affidavit tbat bis duties included acceptance of summons and forwarding of tbe same to the defendant\u2019s various insurers; he further stated that none of the female employees working on the main floor of the hotel on July 31, 1961 (among whom was his own secretary) \u201cever informed me of the existence of the . . . summons, or of its receipt or of having seen said summons or a deputy sheriff serving said summons.\u201d Defendant\u2019s additional affidavits in support of his petition to vacate set forth facts which, if accepted by a trier of fact, would constitute a good defense to plaintiff\u2019s personal injury action.\nPlaintiff\u2019s answer to defendant\u2019s petition denied that defendant was never served, and relied for this conclusion upon the affidavit of Deputy Sheriff Erdis J. Jimerson. In addition, plaintiff\u2019s answer stated that \u201cshe has no knowledge of the facts set forth in the affidavits of the defendants and/or their agents, but demands strict proof thereof.\u201d\nIn substance, the affidavit of Deputy Sheriff Jimerson states as follows: that he originally received the summons during the week of July 16, 1961; that he \u201cappeared at The Shoreland Hotel . . . and presented himself at the main desk,\u201d where he \u201casked one of the employees if he could accept service of the summons, and was advised by him to take the same around the corner to Mr. Reed\u2019s office\u201d; that Jimerson \u201cwas directed to Mr. Reed\u2019s office,\u201d but when he \u201cpresented himself there, the office was closed\u201d; that almost immediately adjacent to Mr. Reed\u2019s office was the switchboard office, where Jimerson \u201casked the two switchboard operators if they would aceept service for Mr. Reed, but he was informed by them that they could not do so.\u201d Jimerson further stated that \u201che again presented himself at Mr. Reed\u2019s office a few days thereafter, and again found that Mr. Reed was not present; however, he asked a woman employee who was sitting at a typewriter desk in Mr. Reed\u2019s office, if she would accept service, but sbe advised him that she could not accept service for Mr. Reed and that [he should] come back another time.\u201d The affidavit states that in the afternoon of July 31, 1961, Jimerson again appeared at the Shoreland Hotel \u201cfor the purpose of serving\u201d the complaint upon \u201cMr. Reed\u201d; that upon going to Reed\u2019s office, he \u201cwas again met by the same woman employee working in [Reed\u2019s] office and was again advised by her that Mr. Reed was not in\u201d; that Jimerson \u201cagain asked her if she would accept the summons and again she refused,\u201d but that this time Jimerson \u201crefused to leave without leaving the summons and complaint-at-law, so [he] presented the same to her with instructions that she should turn it over to Mr. Reed, and then [he] left.\u201d Jimerson stated that \u201ca few days later, he again presented himself at Mr. Reed\u2019s office and again found the same woman employee at the same, desk,\u201d where he said to her, \u201c\u2018What did you do with the summons,\u2019 and she said \u2018I gave it to Mr. Reed.\u2019 This employee refused to give [Jimerson] her name.\u201d\nWhen called by plaintiff as a witness during the hearing on defendant\u2019s petition, Jimerson repeated the facts set forth in his affidavit, adding only (1) that his visits to the hotel were between 12:30 and 2:00 in the afternoon, and (2) that he never asked the people at the front desk the name of the woman to whom he gave the summons, and whom he identified as \u201cMiss Reed\u201d in his return.\nIn seeking reversal of the trial court\u2019s order, plaintiff relies upon the argument that \u201cdefendant\u2019s affidavits cannot be considered\u201d because they were not supported by oral testimony, with right of cross-examination at the hearing on the petition to vacate. Since Deputy Sheriff Jimerson testified in court, plaintiff argues that only his testimony may be considered and that, therefore, the only evidence before the trial court conclusively proved service upon defendant.\nPlaintiff cites no direct authority for this contention. Section 72(2) of the Civil Practice Act provides that \u201cThe petition must he supported by affidavit or other appropriate showing as to matters not of record.\u201d (Emphasis supplied.) Further, section 69, paragraph (2), of the Civil Practice Act states that \u201cif evidence is necessary concerning any fact which according to law and the practice of the court may now be supplied by affidavit, the court may, in its discretion, require the evidence to be presented, wholly or in part, by oral examination of the witnesses in open court . . . .\u201d\nThe instant record indicates that the trial court\u2019s only interest with respect to the witnesses called by plaintiff was to establish that they had nothing to add to the material already set forth in their respective affidavits. It is apparent that neither the affidavit nor the testimony of Jimerson controverts any of the affidavits submitted on behalf of defendant; in essence, Jimerson testified only that he \u201cserved\u201d a woman who had several times informed him of her lack of authority to accept service, whose identity was completely unknown to him, whose connection with defendant, if any, was unknown to him, and whom he identified on his sworn return as \u201cMiss Reed.\u201d Under such circumstances, there was no necessity for requiring defendant\u2019s affiants to testify and orally repeat the substance of their uncontroverted affidavits and to submit to cross-examination. Also, the record shows that at no time did plaintiff\u2019s attorneys request the trial court to exercise its discretion by requiring oral examination of witnesses.\nWe believe that defendant sustained its burden of proving lack of service by clear and convincing evidence. Deputy Jimerson himself contradicted his sworn return. It is clear that when he identified the person served as \u201cMiss Reed,\u201d he had no idea what her name was, and had made no effort to find out her name from anyone, except her. Cf. Jansma Transport, Inc. v. Torino Baking Co., 27 Ill App2d 347, 352-353, 169 NE2d 829 (I960). Defendant\u2019s affidavits eliminated from consideration the only female employees of the hotel who were working on the main floor on the day that service was purportedly obtained.\nEven assuming arguendo that the person purportedly served was some female employee of defendant, it does not follow that her presence before a typewriter in the hotel auditor\u2019s office was enough to imply agency for receipt of service of summons, since Jimerson\u2019s own testimony establishes that he was told several times that she could not accept service. Finally, we may note that plaintiff does not contend that Jimerson\u2019s instructions to the woman to \u201cturn [the summons] over to Mr. Reed\u201d could in any way constitute the woman a proper person to serve Reed. Illinois statutes do not permit \u201cdeputization by deputy.\u201d See Ill Rev Stats, c 110, \u00a7 13.1; Ill Rev Stats, c 125, \u00a7\u00a77-10.\nWe find it unnecessary to consider plaintiff\u2019s contention that one of her attorneys \u201cgave the case number\u201d of the instant suit to an adjuster for defendant\u2019s insurance carrier, during the course of a telephone conversation. The Civil Practice Act does not provide that notice of suit to an insurer is service of process on the insured. \u201c. . . The rule that equity will not relieve one against the neglect of a party who has not made a proper defense or moved for a new trial presupposes that he knowingly had a day in court. Owens v. Ranstead, 22 Ill 161, 162 (1859).\u201d Lichter v. Scher, 4 Ill App2d 37, 42, 123 NE2d 161 (1955).\nFor the reasons indicated, the trial court\u2019s order quashing service of summons and vacating the default judgment is affirmed, and the. eause is remanded for further proceedings as directed by the trial court.\nOrder affirmed and eause remanded.\nBURMAN, P. J. and ENGLISH, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "David C. Ruttenberg, William C. Wines, and Allen S. Gerrard, of Chicago, for appellant.", "Rudnick & Wolfe, Berchem, Schwantes & Thuma (Jerome L. Fels, Donald N. Berchem, and Robert L. Kiesler, of counsel), for appellee." ], "corrections": "", "head_matter": "Belle Isaacs, Plaintiff-Appellant, v. The Shoreland Hotel, Defendant-Appellee.\nGen. No. 48,813.\nFirst District, First Division.\nMarch 11, 1963.\nDavid C. Ruttenberg, William C. Wines, and Allen S. Gerrard, of Chicago, for appellant.\nRudnick & Wolfe, Berchem, Schwantes & Thuma (Jerome L. Fels, Donald N. Berchem, and Robert L. Kiesler, of counsel), for appellee." }, "file_name": "0108-01", "first_page_order": 118, "last_page_order": 126 }