{ "id": 5293630, "name": "Elisha Abron, Plaintiff-Appellant, v. Public Pontiac, Inc., an Illinois Corporation, Defendant-Appellee", "name_abbreviation": "Abron v. Public Pontiac, Inc.", "decision_date": "1965-09-24", "docket_number": "Gen. No. 49,626", "first_page": "73", "last_page": "78", "citations": [ { "type": "official", "cite": "64 Ill. App. 2d 73" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "171 NE2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill App2d 164", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5217372 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/28/0164-01" ] }, { "cite": "169 NE2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill App2d 347", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5787764 ], "pin_cites": [ { "page": "352, 353" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/27/0347-01" ] }, { "cite": "116 NE2d 88", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill App2d 22", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5117615 ], "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/1/0022-01" ] }, { "cite": "188 NE2d 776", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill App2d 108", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5251725 ], "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/40/0108-01" ] }, { "cite": "175 NE2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill App2d 232", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5228798 ], "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/31/0232-01" ] }, { "cite": "200 NE2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill App2d 253", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5275782 ], "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/50/0253-01" ] } ], "analysis": { "cardinality": 449, "char_count": 6526, "ocr_confidence": 0.573, "pagerank": { "raw": 3.8529836642832147e-07, "percentile": 0.8997254280075788 }, "sha256": "2a89fbb990f37ae701acc8a56a0b7feadea3fdef80d042e1bdc872b724e8c2ce", "simhash": "1:a62ea839bb06997f", "word_count": 1066 }, "last_updated": "2023-07-14T21:35:57.055657+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McCORMICK, P. J. and DRUCKER, J., concur." ], "parties": [ "Elisha Abron, Plaintiff-Appellant, v. Public Pontiac, Inc., an Illinois Corporation, Defendant-Appellee." ], "opinions": [ { "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nPlaintiff appeals from an order allowing defendant\u2019s petition under Section 72 of the Civil Practice Act. Ill Rev Stats (1961), ch 110, \u00a772. The order vacated plaintiff\u2019s judgment previously entered against defendant by default. It also quashed the service of summons and gave defendant time to answer.\nThe original complaint, filed June 9, 1962, alleges false arrest and malicious prosecution. In 1959 defendant had sworn out a warrant for plaintiff\u2019s arrest on a charge of obtaining property under false pretenses. The ensuing criminal proceedings were dismissed for want of prosecution'on June 10, 1960 after some half-dozen continuances. The summons on file in the instant case shows service on defendant June 27, 1962. Default was taken on March 1, 1963, and on June 4, 1963, after prove-up before a jury, judgment was entered against defendant for $9,000. No execution was issued, but about four months later a citation to discover assets was issued and it was served on defendant on October 11, 1963. Defendant\u2019s original Section 72 petition (subsequently amended by leave of court) was filed October 17, 1963. Plaintiff filed a motion to strike parts of the amended petition and answered other parts. After hearing evidence, the court entered the order from which this appeal has been taken.\nOne of the findings made by the trial court was that defendant\u2019s amended petition states a meritorious defense to plaintiff\u2019s complaint. In setting forth his theory of the case in his brief filed in this court, plaintiff states that the court erred in so finding. However, since this contention is not included under Points and Authorities, and is not argued in plaintiff\u2019s brief, we consider that the point has been waived. Darling v. Charleston Community Memorial Hospital, 50 Ill App2d 253, 308, 200 NE2d 149; River v. Atlantic & Pacific Tea Co., 31 Ill App2d 232, 239, 175 NE2d 593; Appellate Court Rule 5 (2) (k).\nMultiple arguments were presented by plaintiff, and they come down to two points: that the court erred in finding (1) that there was no service of summons on defendant, and (2) that defendant had exercised due diligence in the premises.\nWe recognize that the sheriff\u2019s return is prima facie proof of service, and that the courts should indulge every presumption in favor of the validity of the service and the verity of the return. On the other hand, since a Section 72 petition is addressed to the equitable powers of the court, it is also appropriate to question a sheriff\u2019s return, and it may be contradicted by facts not before the court in the original ex parte proceeding. Isaacs v. Shoreland Hotel, 40 Ill App2d 108, 110, 188 NE2d 776; Tomaszewski v. George, 1 Ill App2d 22, 27, 116 NE2d 88.\nThe return in this case shows service of the summons on defendant corporation \u201cby leaving a copy thereof with Finkelstein, Bkkpr.\u201d At the hearing on defendant\u2019s petition, the deputy sheriff testified to facts establishing valid service on defendant by service on Mr. Waldorf, the President of defendant corporation, and plaintiff argues in favor of this result in his brief. The deputy said that after having made service on Waldorf the latter told him to give the papers to Finkelstein. This testimony in itself tends to impeach the return of service. The whole transaction was denied by both Waldorf and Finkelstein. Defendant also introduced evidence on Finkelstein\u2019s lack of authority to act as agent of the corporation to accept service of summons. Defendant argues in the alternative from both these phases of the evidence, citing Isaacs and Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 352, 353, 169 NE2d 829.\nGiven this conflicting testimony on an issue of fact, we will not substitute ourselves for the trial judge in determining the issue because it is his proper function to judge the credibility of the witnesses.\nAs to the question of defendant\u2019s diligence, the credibility of the witnesses is again the controlling factor. Plaintiff\u2019s attorney attested to the giving of notice to defendant by telephone and mail on several occasions: to the effect that it would be defaulted, that it had been defaulted, that a judgment would be entered against it, that this had been done, etc. Defendant\u2019s witnesses denied receipt of any meaningful communication in regard to the pending litigation, and they, rather than plaintiff\u2019s witness, were apparently believed by the trial court.\nThe point concerning defendant\u2019s diligence, however, fades from importance in view of our sustaining of the trial court in its finding that there was no service of summons upon defendant. Without service or appearance the court had no jurisdiction to enter a judgment against defendant, and the invalidity of such a judgment may be raised at any time by either direct or collateral attack. Chiaro v. Lemberis, 28 Ill App2d 164, 171 NE2d 81.\nThe order of the. Circuit Court is affirmed.\nAffirmed.\nMcCORMICK, P. J. and DRUCKER, J., concur.\nDefendant\u2019s subsequently filed petition explained that it took this action because a car which plaintiff had traded to defendant was subject to a chattel mortgage of which defendant had not been advised at the time of the transaction.\nIt is of passing interest that the only one of three letters which defendant admitted receiving from plaintiff\u2019s attorney (copies of which were in evidence) was one dated August 23, 1963, about 80 days after entry of the default judgment. In this letter reference was made to the \u201cclaim\u201d of Elisha Abron and demand for satisfaction of his \u201clien,\u201d without which the writer would \u201ctake action against you to collect for your tortious acts.\u201d No mention was made of the facts that a suit had been filed, default taken, judgment entered, etc. No suit title or case number was furnished. Following receipt of this letter, defendant ordered a professional judgment search, but for some unexplained reason it failed to disclose plaintiff\u2019s judgment. Defendant\u2019s witnesses testified that the first time defendant had notice of the suit or the judgment was when citation summons was served in October, 1963. Six days thereafter it filed its petition under Section 72.", "type": "majority", "author": "MR. JUSTICE ENGLISH" } ], "attorneys": [ "Thaddeus B. Rowe, of Chicago, for appellant.", "L. Louis Karton and Harry R. Posner, of Chicago, for appellee." ], "corrections": "", "head_matter": "Elisha Abron, Plaintiff-Appellant, v. Public Pontiac, Inc., an Illinois Corporation, Defendant-Appellee.\nGen. No. 49,626.\nFirst District, Fourth Division.\nSeptember 24, 1965.\nRehearing denied December 10,1965.\nThaddeus B. Rowe, of Chicago, for appellant.\nL. Louis Karton and Harry R. Posner, of Chicago, for appellee." }, "file_name": "0073-01", "first_page_order": 85, "last_page_order": 90 }