{
  "id": 3414861,
  "name": "ELVIRA L. DeMET, Plaintiff-Appellee, v. MICHAEL C. DeMET, Defendant-Appellant",
  "name_abbreviation": "DeMet v. DeMet",
  "decision_date": "1977-12-21",
  "docket_number": "No. 76-1563",
  "first_page": "900",
  "last_page": "902",
  "citations": [
    {
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      "cite": "56 Ill. App. 3d 900"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "292 Ill. App. 421",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T16:43:47.132655+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ELVIRA L. DeMET, Plaintiff-Appellee, v. MICHAEL C. DeMET, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE JIG ANTI\ndelivered the opinion of the court:\nThe plaintiff filed an action seeking a partition of certain real estate in Cook County and other relief. Shortly thereafter the plaintiff filed an affidavit for service by publication in accordance with the rules of the Civil Practice Act. After publication the trial court entered a judgment partitioning the property. The defendant filed a special and limited appearance together with motions to vacate the judgment of partition and to dismiss the action on the ground that the court lacked in rem jurisdiction. The trial court denied the motions. This appeal contests the jurisdiction of the court over the real estate.\nSection 14 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 14) provides that in any action affecting property within the jurisdiction of the court the plaintiff or his attorney shall file an affidavit showing:\n\u201c[T]hat the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within the State, so that process cannot be served upon him, and stating place of residence of the defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, * \u00b0\nThe affidavit filed states:\n\u201c1. Defendant Michael C. DeMet, on due inquiry, cannot be found so process cannot be served upon him, he is believed concealed within the State.\n2. Defendant\u2019s place of residence last known residence \u2014 102 B Camp McDonald Road, Prospect Heights, Illinois.\u201d\nThe defendant asserts on appeal that paragraph 2 of the affidavit fails to state that the plaintiff made a \u201cdiligent inquiry\u201d as to the defendant\u2019s place of residence. Further, the plaintiff has failed to allege facts upon which the court could determine that a diligent inquiry had actually been made by the plaintiff. Consequently, the defendant asserts, the court lacked jurisdiction to enter a judgment of partition and it is therefore void.\nSection 14 of the Civil Practice Act is former section 12 of the Chancery Act. (Ill. Ann. Stat., ch. 110, par. 14, Historical and Practice Notes (Smith-Hurd 1968).) In interpreting section 12 the court in Anderson v. Anderson (1937), 292 Ill. App. 421, 11 N.E.2d 216, noted that the statute requires that an affidavit filed pursuant to the provision show that, \u201c* \u00b0 * first, one of the reasons specified therein why the particular defendant was not available for service of process upon such defendant, and, second, matters relating to such defendant\u2019s residence.\u201d In the case at bar, there is no contention that the first part of the affidavit concerning why the particular defendant was not available for service is defective. In the words of the statute the affidavit alleges that \u201con due inquiry\u201d the defendant cannot be found and also that he \u201cis believed concealed within the State.\u201d The defendant\u2019s contention here is that the second portion of the affidavit relating to the defendant\u2019s residence is defective.\nIn Hartung v. Hartung (1880), 8 Ill. App. 156, the court considered an affidavit on this point. The affidavit recited that * \u00b0 John C. Hartung, defendant * * *, is not now a resident of this State; that he left his home and the State of Illinois in the month of June, A.D. 1878, and has never returned to the same from that time to the present; that affiant has no knowledge of the whereabouts of said John C. Hartung, except what one Anton Binkert informed her. Said Binkert informed affiant that said defendant had gone to the Hot Springs, in the State of Arkansas, as said John Hartung has informed him; \u00b0 \u00b0 The court found the affidavit fatally defective stating:\n\u201cTo comply with the requirements of the statute, the affidavit should aver in the language of the statute, \u2018that upon diligent inquiry the place of residence of the defendant could not be ascertained;\u2019 or it should give the facts connected with the inquiry, so that the court could readily determine that diligent inquiry had been made by the affiant, and that upon such inquiry the residence of the defendant could not be ascertained.\u201d (Hartung, at 159)\nThe court found that the single fact stated by Binkert was not sufficient because it did not state the time that Binkert conveyed the information to the affiant.\nThe Hartung case was followed in Malaer v. Damron (1889), 31 Ill. App. 572. There, the affidavit alleged \u201cthe place of residence of Alexander Hudgins is unknown.\u201d The court found that the affidavit was insufficient because it merely stated that his place of residence is unknown and omits \u201cthe further necessary averment, \u2018that upon diligent inquiry his place of residence cannot be ascertained\u2019.\u201d\nIn Spalding v. Fahrney (1903), 108 Ill. App. 602, the affidavit stated that \u201cdue diligence has been made to ascertain the residence of said Helena F. Spalding.\u201d The court found this affidavit insufficient because it did not state that \u201cdiligent inquiry\u201d was made. The court said that the affidavit states that due diligence has been made to ascertain the residence of the defendant, but whether that was by inquiry or whether something else other than an inquiry was deemed by the affiant to be due diligence could not be known from the affidavit.\nSection 4 of the Civil Practice Act enacted in 1933 provides that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. An affidavit that would have stated in the words of the statute that \u201cupon diligent inquiry his place of residence cannot be ascertained\u201d would be a valid affidavit. (Hartung, at 159; Malaer, at 574; Spalding, at 604.) The affidavit here states the defendant\u2019s last known residence and also states, in paragraph 1, that upon \u201cdue inquiry\u201d Michael C. DeMet cannot be found so that service of process can be had upon him and that he is believed to be concealed within the State. Bearing in mind the liberal construction mandated by the Civil Practice Act, in our opinion those statements read together satisfy the requirement of the statute requiring an affidavit alleging \u201cdiligent inquiry\u201d as to his place of residence.\nThe judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nSIMON, P. J., and McNAMARA, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE JIG ANTI"
      }
    ],
    "attorneys": [
      "James J. Reagan, of Northbrook, for appellant.",
      "Robert A. Bush, of Bush and Bush, of Mt. Prospect, for appellee."
    ],
    "corrections": "",
    "head_matter": "ELVIRA L. DeMET, Plaintiff-Appellee, v. MICHAEL C. DeMET, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 76-1563\nOpinion filed December 21, 1977.\nRehearing denied February 9, 1978.\nJames J. Reagan, of Northbrook, for appellant.\nRobert A. Bush, of Bush and Bush, of Mt. Prospect, for appellee."
  },
  "file_name": "0900-01",
  "first_page_order": 922,
  "last_page_order": 924
}