Bank of Edwardsville v. Raffaelle

• Decision Date: 14 January 1943
• Docket Number: No. 26813.,26813.
• Citation: 45 N.E.2d 651,381 Ill. 486
• Parties: BANK OF EDWARDSVILLE v. RAFFAELLE.
• Court: Illinois Supreme Court

381 Ill. 486

45 N.E.2d 651

BANK OF EDWARDSVILLE

v.RAFFAELLE.

No. 26813.

Supreme Court of Illinois.

Nov. 17, 1942.

Rehearing Denied Jan. 14, 1943.

Action by the Bank of Edwardsville against J. A. Raffaelle, wherein the plaintiff secured a judgment by confession against the defendant for $3,430.32, and subsequently instituted scire facias proceeding to revive such judgment. From a judgment reviving the judgment, the defendant appeals.

Judgment affirmed.Appeal from Circuit Court, Madison County; Dick H. Mudge, judge.

Henry B. Eaton and Robert W. Tunnell, both of Edwardsville, for appellant.

J. F. Eeck, of Edwardsville, for appellee.

FULTON, Justice.

On May 16, 1932, the plaintiff-appellee secured a judgment by confession in the circuit court of Madison county, in vacation, against defendant-appellant for $3430.32. On April 30, 1941, the appellee, Bank of Edwardsville, commenced proceedings in the said circuit court under paragraph 24b, chapter 83, of the Illinois Revised Statutes 1939, to revive, by scire facias, the judgment thus obtained and upon which nothing had been paid. The writ of scire facias was issued, delivered to the sheriff and returned ‘not found’ in the county of Madison. Upon affidavit filed, it was ascertained that the appellant had formerly resided at Glen Carbon, Madison county, Illinois, but at the time the action was filed to revive the judgment he resided in the State of Wisconsin. Constructive service was then obtained by publication and mailing of notice by the clerk of the circuit court as provided in the statute. Subsequently the appellant entered his limited and special appearance for the purpose of filing a motion to quash service and dismiss the action for want of jurisdiction over the person of the appellant. The court denied the motion to quash the service, and thereafter defaulted appellant and revived the judgment as asked for by appellee. A motion by appellant to set aside the judgment was also denied. Because a constitutional question is involved, the appeal is brought to this court. There is no complaint that the proceedings to revive the judgment are not regular and in compliance with the provisions of the statutes of Illinois.

The sole question raised by appellant pertains to the constitutionality of section 14 of the Civil Practice Act, Ill.Rev.Stat.1939, chap. 110, par. 138, providing for constructive service on a nonresident defendant in an action to revive a judgment or decree. It is the contention of the appellant that said section 14, in so far as it provides for revival of judgment against a nonresident of Illinois, without personal service of process but by constructive service by publication and without a general appearance in court by said nonresident, violates section 2 of article II of the Constitution of Illinois, Smith-Hurd Stats., and also section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it denies a nonresident due process of law. In other words, that the original judgment, after seven years, becomes dormant and the revival of same is equivalent to a judgment in personam and requires personsl service to be valid.

There is no doubt that where a defendant is a nonresident of the State, and the proceeding is in personam, publication will not give a court original jurisdiction over the person of the defendant, notwithstanding the nonresident may receive the notice, and a judgment in personam based upon constructive service is null and void. Griffin v. County of Cook, 369 Ill. 380, 16 N.E.2d 906, 118 A.L.R. 1157;Bickerdike v. Allen, 157 Ill. 95, 41 N.E. 740,29 L.R.A. 782. It has also been held that constructive service in proper cases is due process of law. In People v. Niesman, 356 Ill. 322, 190 N.E. 668, 670, this court said ‘An orderly proceeding in which a person is served with...