{
  "id": 3303729,
  "name": "Chauncey T. Smith, Plaintiff in Error, v. Jack Zuta et al., Defendants in Error",
  "name_abbreviation": "Smith v. Zuta",
  "decision_date": "1928-01-18",
  "docket_number": "Gen. No. 31,625",
  "first_page": "203",
  "last_page": "207",
  "citations": [
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      "type": "official",
      "cite": "247 Ill. App. 203"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
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    {
      "cite": "317 Ill. 362",
      "category": "reporters:state",
      "reporter": "Ill.",
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  "last_updated": "2023-07-14T21:19:24.032975+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Chauncey T. Smith, Plaintiff in Error, v. Jack Zuta et al., Defendants in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Holdom\ndelivered the opinion of the court.\nThis action was brought by plaintiff against Jack Zuta, Henry Finkelstein and Morris Simmons for damages arising out of an automobile accident on September 28, 1923, and the plaintiff claimed damages in the sum of $485. The suit was dismissed as to the defendants Finkelstein and Simmons, which left Jack Zuta as the sole defendant. Zuta was personally served with a summons, as shown by the return thereon of the bailiff of the municipal court, on December 11, 1923. Zuta\u2019s appearance was entered in the cause by one Murphy O. Tate, as his attorney. It is not challenged but that Tate was at the time he entered Zuta,\u2019s appearance a regularly' licensed attorney of the State of Illinois. Tate, as Zuta\u2019s attorney, made an affidavit that Zuta had a meritorious defense to the action. On November 14, 1924, there was a trial before the court without a jury and a finding against Zuta in tort for $385.50 and costs, and a judgment on that finding for the lasthnentioned sum.\nThereafter and on April 19, 1926, defendant obtained leave to file a petition to vacate the judgment, whereupon plaintiff moved to strike such petition from the files. On May 7, 1926, the motion of plaintiff to strike Zuta\u2019s petition to vacate the judgment was denied, and the cause was reinstated on condition that an attorney\u2019s fee of $25 should be paid by Zuta, and it was paid.\nIn Zuta\u2019s petition to vacate the judgment against him he claimed inter alia, that he had not been served with a summons, and that he had not employed or authorized Tate to appear for him as his attorney to defend the suit, and not until August, 1925, did he know that judgment had been taken against him in the suit.\nAn order was entered on July 27, 1926, granting Zuta\u2019s petition and vacating the judgment order of November 14, 1924, and reinstating the cause for trial on payment to plaintiff\u2019s attorney of $25, and also giving leave to Tate to withdraw his appearance as attorney for Zuta. On August 30, 1926, an order was entered of record that Zuta be allowed to pay the $25 attorney\u2019s fees in open court to plaintiff\u2019s attorney, and that said sum be accepted by said attorney without prejudice to plaintiff\u2019s appeal. Tate told the court that he was not retained by Zuta, but representing the insurance company who had insured the risk, assumed so to do as a matter of course, contending that it was a custom among attorneys in Chicago representing insurance companies in suits to appear, as a matter of course, for all the defendants joined with the insurance companies without any direct authority so to do.\nError is assigned on the court\u2019s refusal to strike Zuta\u2019s petition to vacate the judgment from the files, and in vacating such judgment, and in permitting Zuta to defend against the action.\nOn November 14, 1924, the judgment was entered and not until one year and six months thereafter, on May 7, 1926, did Zuta file his motion to vacate the judgment. If it were necessary to apply the doctrine of laches to. these facts, we should hold that laches was apparent.\nWhen the judgment was rendered it is clear that the court had jurisdiction of Zuta in two ways, first, by the service of process upon him by the bailiff of the court, and by Tate\u2019s entry of his appearance. There is nothing in this record to support the claims of Zuta that he was not served with process, except his own statement. The service of process cannot be nullified in any such way. If it could, there would be no security in court judgments. In the case at bar there is no supporting fact to cast doubt upon the return of service by the court\u2019s officer. The fact of service cannot be overcome by the unsupported statement of the party served. - The return of an officer made in discharge of his duty will not be disregarded, except upon clear and satisfactory evidence, and will not be set aside on the uncorroborated and unsupported statement of the person on whom the officer\u2019s return of service shows that it was made.\nIn Marnik v. Cusack, 317 Ill. 362, the court said:\n\u201cThe well established rule is that the return showing service cannot be overcome by the uncorroborated testimony of the defendant,\u201d and then indulged in the following observations:\n\u201cThe stability of judicial'proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence. Davis v. Dresback, 81 Ill. 393; Kochman v. O\u2019Neill, 202 id. 110.\u201d\nDefendant\u2019s counsel contend that the acceptance of the $25 attorney\u2019s fee ordered paid by the court debars plaintiff from availing of the erroneous action of the court, even were such action erroneous. The fee was awarded as a condition precedent to the action of the court in vacating the judgment. It was ordered by the court to be paid to plaintiff\u2019s attorney. This in itself was erroneous; the lawyer was not a litigant, it was the client who was responsible for the payment of fees to his attorney. Moreover, by the express terms of the order, it was taken by the attorney, not the plaintiff, and was so ordered taken without prejudice to the right of the plaintiff to appeal. There is no force in this contention of defendant. Furthermore this point was passed upon adversely to defendant by this court when he raised the question by plea which th'e court struck from the files. This action of the court eliminated that question from the case and this court\u2019s further consideration of it.\nFor the foregoing reasons the judgment of the municipal court appealed from is reversed, and the cause is remanded to the municipal court with directions to restore to the record the judgment entered November 14, 1924, against Jack Zuta for $385.50 and costs.\nReversed and remanded with directions.\nTaylor, P. J., and Wilson, J., concur.",
        "type": "majority",
        "author": "Mr. Justice Holdom"
      }
    ],
    "attorneys": [
      "Bell & Cross, for plaintiff in error; Stephen A. Cross and William B. Greene, of counsel.",
      "Harry W. Starr, Israel R. Goldberg and Charles P. R. McCauley, for defendant in error, Jack Zuta."
    ],
    "corrections": "",
    "head_matter": "Chauncey T. Smith, Plaintiff in Error, v. Jack Zuta et al., Defendants in Error.\nGen. No. 31,625.\nHeard in the third division of this court for the first district at the October term, 1927.\nOpinion filed January 18, 1928.\nBell & Cross, for plaintiff in error; Stephen A. Cross and William B. Greene, of counsel.\nHarry W. Starr, Israel R. Goldberg and Charles P. R. McCauley, for defendant in error, Jack Zuta."
  },
  "file_name": "0203-01",
  "first_page_order": 233,
  "last_page_order": 237
}