{ "id": 5639915, "name": "GRACE SCHULTZ, Plaintiff-Appellant, v. DONALD GERSTEIN, Defendant-Appellee", "name_abbreviation": "Schultz v. Gerstein", "decision_date": "1977-07-12", "docket_number": "No. 75-388", "first_page": "586", "last_page": "590", "citations": [ { "type": "official", "cite": "50 Ill. App. 3d 586" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "48 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906340 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0580-01" ] }, { "cite": "137 N.E. 149", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "151-52" } ], "opinion_index": 0 }, { "cite": "132 Am. St. Rep. 555", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "119 S.W. 409", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "220 Mo. 104", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 894423 ], "opinion_index": 0, "case_paths": [ "/mo/220/0104-01" ] }, { "cite": "137 N.E.2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 233", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853921 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0233-01" ] } ], "analysis": { "cardinality": 501, "char_count": 10226, "ocr_confidence": 0.882, "pagerank": { "raw": 1.37978780461965e-07, "percentile": 0.640277869481966 }, "sha256": "26871f0fbd43c8dc8d6d86803e9c6cbe90441705b0695e640f1e9be016f42a3b", "simhash": "1:19fd97630357d5f5", "word_count": 1762 }, "last_updated": "2023-07-14T21:01:05.304449+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GRACE SCHULTZ, Plaintiff-Appellant, v. DONALD GERSTEIN, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE WOODWARD\ndelivered the opinion of the court:\nThis appeal arises out of the confusion that frequently occurs where a father and son have the same name, except that the father is designated as Senior (Sr.) and the son is designated as Junior (Jr.). On December 4, 1972, the plaintiff filed a complaint seeking damages for personal injuries arising out of an automobile accident that occurred on July 25, 1972, at Fox Lake Road and Broadway in McHenry County, Illinois. The complaint named \u201cDonald Gerstein\u201d as the defendant; summons was issued in that name and the sheriff was requested to serve the defendant as named above \u201cat 1817 Oakleaf Dr., McHenry, Illinois\u201d; the sheriffs return showed that service on the defendant of that name at the address specified above was obtained on January 2, 1973. Within 30 days an answer to the complaint was filed by \u201cDonald Gerstein, Sr.\u201d denying all of the material allegations of the complaint.\nApproximately four months later, the plaintiff caused an alias summons to be issued and the sheriff was instructed to serve Donald R. Gerstein, Jr., at 1817 Oakleaf Drive, McHenry, Illinois; this summons was returned by the sheriff \u201cnot found.\u201d On June 13,1974, a pluries summons was issued at the plaintiff\u2019s request and the sheriff was directed to serve the summons on Donald R. Gerstein, Jr., at 1308 E. Watts, Spring Grove, Illinois, c/o Mr. and Mrs. John Watson; this summons was returned by the sheriff, \u201cnot in area.\u201d On August 8, 1974, plaintiff caused a special deputy to be appointed to serve summons and another pluries summons was issued to Donald R. Gerstein, Jr., at the same address as the one issued in June 1974, and this was returned \u201cdefendant not found.\u201d On December 3,1974, the plaintiff caused a pluries summons to be served upon \u201cDonald Gerstein\u201d and the affidavit of compliance stated that Donald Gerstein was a nonresident of Illinois and his last known address was 1817 Oakleaf Drive, McHenry, Illinois.\nOn April 1, 1975, a motion for summary judgment was filed by the defendant, \u201cDonald Gerstein,\u201d by the attorneys who had filed an answer in behalf of Donald Gerstein, Sr., which motion stated that Donald Gerstein was served with summons on January 2,1973, in this case and that he was not involved in any automobile accident on July 25,1972. The affidavit attached to this motion stated, among other things, that at the time when he was served with summons in January of 1973, that Donald Gerstein, Jr., resided at 1817 Oakleaf Drive, McHenry, Illinois. In response to this motion for summary judgment, the plaintiff filed an unverified answer which in effect stated that Donald Gerstein, Sr., was not the named defendant in this suit and that Donald Gerstein, Jr., was involved in the automobile accident on July 25, 1972. The trial court granted the motion for summary judgment as to the defendant \u201cDonald Gerstein\u201d and it is from this order that this appeal is taken.\nThe trial court found Stevens v. Yonker (1973), 12 Ill. App. 3d 233, to be controlling here. In that case, the plaintiff was injured in an automobile accident involving Bruce Yonker; the complaint named William Yonker as the defendant and the return of the sheriff showed service by leaving a copy with the wife of William Yonker. William Yonker filed an appearance but denied the material allegations of the complaint and, after the statute of limitations had run, the plaintiff sought to amend the pleadings to correct the name of \u201cWilliam Yonker\u201d to read \u201cBruce Yonker.\u201d On appeal, the appellate court held that the plaintiff\u2019s motion to amend the pleadings was properly denied as the single issue presented was whether or not the plaintiff sued the proper party but under the wrong name, or sued the wrong party. The court concluded that the plaintiff had sued the wrong party and further, stated that no service was attempted upon the defendant\u2019s son, Bruce Yonker, who was the driver of the car.\nIn the case before us the record reveals that the proper party was sued under the proper name; however, the designation \u201cJr.\u201d was not included and the wrong person, namely \u201cSr.\u201d elected to file an answer to the complaint. Thereafter, plaintiff made repeated attempts to obtain personal service on \u201cJr.\u201d and finally ended up effecting service upon \u201cJr.\u201d through the Secretary of State. Furthermore, the motion for summary judgment filed in this cause in the trial court, attached a copy of the McHenry County sheriff\u2019s accident report which showed that \u201cJr.\u201d was the individ\u00faal involved in the accident in question. In view of the foregoing, it is very apparent that the plaintiff intended to sue \u201cJr.\u201d and that all of the parties and attorneys who appeared in this cause knew that \u201cJr.\u201d was the intended defendant in this action. Therefore, we conclude that Stevens v. Yonker is not dispositive in this case.\nA similar situation was presented in the case of Maher v. Deam (Ohio App. 1956), 137 N.E.2d 149. In that case the complaint named James P.. Deam as the defendant and alleged that he was driving an automobile involved in the collision with the plaintiff. The summons was served on James P. Deam and an answer thereto was filed by James P. Deam. At \u00e1 pretrial conference, it was disclosed that an answer had been filed by the father and not the son of the same name who was actually involved in the accident. Plaintiff made a motion for leave to amend the petition and return of the sheriff and this was overruled by the trial court. It appeared that both the father and son resided at the same address at the time the summons was served. The Ohio Court of Appeals stated as follows:\n\u201cNow, who is the defendant in this action?\nIt is said that because the plaintiff failed to attach the suffix \u2018Junior\u2019 it follows that the father is the defendant. It seems to us by parity of reasoning it can be concluded that because the pleader failed to add the suffix \u2018Senior\u2019 the son is the defendant. The rule is that neither suffix is any part of the name. In an exhaustive annotation to the case of Proctor v. Nance, 220 Mo. 104, 119 S.W. 409, 132 Am. St. Rep. 555, at page 579, it is said:\n\u2018The word \u201cJunior\u201d or \u201cJr.\u201d or words of similar import are ordinarily mere words of description, and no part of a person\u2019s legal name.\u2019 A long array of cases are cited in support of the text,\ne # #\nIn the case at bar all uncertainty is removed by the allegations of the petition in which it is expressly alleged that the defendant negligendy caused the collision and plaintiffs injuries.\n# # #\nSo we conclude that the petition sufficiently identifies the defendant without any additional designation * * *.\u201d 137 N.E. 149, 151-52.\nThe only difference between the Ohio case noted above and the case under consideration is the nature of the order from which the appeal is taken. In the Ohio case, the plaintiff sought to amend the petition to designate \u201cJr.\u201d as a defendant; the trial court denied this relief and the plaintiff appealed. In the instant case, the plaintiff did not seek to amend his complaint to designate \u201cJr.\u201d as the defendant, however, \u201cSr.\u201d sought and was granted a summary judgment and the plaintiff has appealed from that order.\nIn perusing the record in this case, we note that on June 12, 1974, a motion to quash was filed by the attorneys who filed the answer in behalf of Donald Gerstein, Sr., in this case. This particular motion to quash states as follows:\n\u201cNow comes the defendant, Donald Gerstein, Jr., sued herein as Donald Gerstein, by his attorneys, * * *.\u201d\nThe fact that this motion was filed by \u201cJr.\u201d was not raised or argued in this court by either of the parties.\nThe record in this case reveals the following as to Donald Gerstein, Jr.:\nA. It is apparent that he was the party that the plaintiff intended to sue.\nB. That service was effected upon him through the Secretary of State.\nC. Attorneys have filed a motion to quash in his behalf.\nD. No final judgment has been entered in reference to his liability as a defendant in this case.\nTurning now to the order of the trial court from which this appeal has been perfected we find that \u201cSr.\u201d submitted himself to the jurisdiction of the court and took the risk of being found liable in this law suit. He was therefore entitled to use appropriate means to defend himself in that suit and one such tool was a motion for summary judgment. This motion was properly supported by an affidavit; however, the plaintiff failed to file a verified answer and unless a material fact set forth in a motion for a summary judgment supported by affidavit is contradicted by a counter affidavit, the alleged facts must be taken as true even when there are contrary facts in the opposing party\u2019s pleadings. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580.) Because the trial court had before it no other equivalent to sworn testimony in opposition to \u201cSr.\u2019s\u201d position, there was no longer a genuine issue of material fact and \u201cSr.\u201d is entitled to a summary judgment as a matter of law.\nOn the basis of the foregoing analysis of the record in this case, we remand this case to the trial court for further proceedings as follows:\n1. That the order granting the summary judgment to Donald Gerstein should be amended to include the designation \u201cSr.\u201d and so as amended said judgment is affirmed.\n2. That part of the order of the trial court stating that the plaintiff take nothing by her action and that the defendant go hence without day and that the plaintiff bear the costs is reversed.\n3. The trial court shall undertake such further proceedings as it may allow against any other person made a defendant in this cause or any other person that plaintiff may have intended to sue or who may presently be subject to the jurisdiction of the trial court.\nAffirmed in part; reversed in part and remanded for further proceedings in accordance with this opinion.\nGUILD and NASH, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE WOODWARD" } ], "attorneys": [ "Dom J. Rizzi, Michael Rathsack, and Donald G. Zerwer, all of Chicago, for appellant.", "Robert M. Bollman and Louis W. Brydges, of Diver, Brydges, Bollman, Grach & Riseborough, of Waukegan, for appellee." ], "corrections": "", "head_matter": "GRACE SCHULTZ, Plaintiff-Appellant, v. DONALD GERSTEIN, Defendant-Appellee.\nSecond District\nNo. 75-388\nOpinion filed July 12, 1977.\nDom J. Rizzi, Michael Rathsack, and Donald G. Zerwer, all of Chicago, for appellant.\nRobert M. Bollman and Louis W. Brydges, of Diver, Brydges, Bollman, Grach & Riseborough, of Waukegan, for appellee." }, "file_name": "0586-01", "first_page_order": 608, "last_page_order": 612 }