Coronet Ins. Co. v. Jones, 61952

• Decision Date: 03 January 1977
• Docket Number: No. 61952,61952
• Citation: 3 Ill.Dec. 909,45 Ill.App.3d 232,359 N.E.2d 768
• Parties: , 3 Ill.Dec. 909 CORONET INSURANCE COMPANY an Illinois Insurance Corporation, Plaintiff-Appellee, v. Alvin JONES, Defendant-Appellant, et al.
• Court: United States Appellate Court of Illinois

Page 768

359 N.E.2d 768

45 Ill.App.3d 232, 3 Ill.Dec. 909

CORONET INSURANCE COMPANY an Illinois Insurance Corporation Plaintiff-Appellee, v. Alvin JONES, Defendant-Appellant, et al.

No. 61952.

Appellate Court of Illinois, First District, First Division.

Jan. 3, 1977.

Karr & Leonard, L.T.D., Chicago (Terrence E. Leonard, Chicago, of counsel), for defendant-appellant.

Arnold & Kadjan, Chicago (Daniel N. Kadjan, Chicago, of counsel), for plaintiff-appellee.

GOLDBERG, Presiding Justice:

Coronet Insurance Company (plaintiff), obtained a summary declaratory judgment against Alvin Jones, Sheila Harris and George Salter terminating its duty to defend under an automobile liability policy. Alvin Jones (defendant) appeals.

On December 3, 1969, defendant was injured while a passenger in an automobile owned by George Salter and driven by Sheila Harris. George Salter was insured by plaintiff. Defendant brought action for damages against Sheila Harris and George Salter.

On March 10, 1972, plaintiff filed the within proceedings for declaratory judgment absolving it from liability on the policy. (Ill.Rev.Stat.1969, ch. 110, par. 57.1.) Plaintiff alleged that it had issued a policy of automobile liability insurance to George Salter; Sheila Harris had been driving the vehicle owned by Salter, on December 3, 1969, without his permission; and the insurance policy did not cover the mishap because it provided:

'Persons insured. The following are insured under Part I:

'(a) with respect to the owned automobile

'1. The named insured and any resident of the same household.

'2. Any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.'

On July 11, 1974, plaintiff moved for summary judgment. Attached to the motion was a portion of a discovery deposition of defendant George Salter. The record establishes that the insured, George Salter, had given his son, George Salter, Jr., permission to use his automobile. Thereafter, the son had permitted Sheila Harris to drive the vehicle. George Salter, Jr., was a passenger at the time of the accident. George Salter, Sr., testified that he had not given permission to anyone but his son to drive his car. No response was filed or presented to the trial court in opposition to plaintiff's motion for summary judgment.

On August 27, 1974, the trial court entered an order to the effect that it had jurisdiction of the parties and of the subject matter; Sheila Harris, the driver, was not a permissive user of the insured automobile and plaintiff was therefore under no legal obligation to defend Sheila Harris in the pending injury case or to pay claims or judgments to defendant herein.

On September 27, 1974, defendant, making his first appearance herein, moved that the court vacate the order granting summary judgment. The motion alleged that defendant had never been served with summons; the summary declaratory judgment was an Ex parte order; Sheila Harris was not represented at the hearing on that order, as her attorney had withdrawn from the case; and, therefore, defendant was denied his right to be represented at the hearing and to oppose the motion for summary judgment. Attached to the motion were an affidavit from defendant's attorney, stating that to the best of his knowledge, defendant had not been served, and, a copy of a motion from Sheila Harris' attorneys, asking leave of court to withdraw from the case because of her lack of cooperation.

In opposition, plaintiff presented a motion stating that summons had in fact been served upon defendant. A photocopy of the summons and return showed that the writ had been served on defendant by the local sheriff in Sandstone, Minnesota, where defendant was in prison, on October 25, 1973. On March 17, 1975, the trial court denied defendant's motion to vacate the summary judgment.

On April 16, 1975, defendant moved that the court reconsider its refusal to vacate the summary judgment. That motion stated that the officer's return of service appearing on the summons had not been filed until after September 27, 1974; defendant had not been notified that plaintiff planned to take George Salter's discovery deposition on October 11, 1972, and defendant was not even a party to the action at that time; and defendant was not given notice of plaintiff's application for summary judgment or of the hearing on that motion. The motion set forth that, according to the law of Illinois, Sheila Harris was covered by George Salter's insurance policy issued by plaintiff. Further, defendant stated that he had hired an attorney in Illinois who had checked the court file and never found that the return of service of the summons had been filed so that defendant had exercised due diligence in presenting his motion under section 72 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 72). This motion was also denied. Defendant appeals.

In this court, defendant contends that the order granting plaintiff's motion for summary judgment was void because the court did not acquire personal jurisdiction over defendant; the facts presented to the court in plaintiff's motion for summary judgment provide no basis for granting the relief requested; the court had no basis under case law to support its findings that the driver of the automobile was not a permissive user; and defendant's motions to vacate and reconsider sufficiently established due diligence and a meritorious cause of action to sustain equitable relief under section 72 of the Civil Practice Act. Plaintiff contends that this court is without jurisdiction to grant relief based upon the motion to vacate and the notice of appeal; treating the motion to vacate as a section 72 motion, it is insufficient; the appeal should be dismissed as Sheila Harris and George Salter are bound by the judgment order and reversal as to defendant would not benefit him; and the trial court had jurisdiction over defendant because the summons had been served upon him.

We will first consider plaintiff's motion to dismiss the appeal and defendant's response which we have taken with the case. Plaintiff contends this court lacks jurisdiction because defendant's motion to vacate, filed on September 27, 1974, was filed beyond the 30 days permitted for filing of post-trial motions (Ill.Rev.Stat.1975, ch. 110, par. 68.3). The summary declaratory judgment was entered August 27, 1974.

A verified petition to set aside an Ex parte judgment filed more than 30 days thereafter will be construed as having been filed under section 72 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 72). (See Goldstick v. Saporito (1974), 22 Ill.App.3d 621, 623, 317 N.E.2d 774 and Mehr v. Dunbar Builders Corp. (1972), 7 Ill.App.3d 881, 883, 289 N.E.2d 25.) A denial of a section 72 petition to vacate a judgment is a final and appealable order (Ill.Rev.Stat.1975, ch. 110A, par. 304(b(3), Diner's Club v. Gronwald (1976) (First District, Docket No. 61951 filed November 18, 1976), Ill.App., 1 Ill.Dec. 928, 356 N.E.2d 1261). Defendant's notice of appeal was timely filed on April 16, 1975, which was 30 days after the trial court's denial of defendant's motion to vacate, entered on March 17, 1975. The notice of appeal was filed on the same day that the court denied defendant's motion to reconsider the order which had denied defendant's motion to vacate the judgment. Therefore, this court has jurisdiction of the appeal and plaintiff's motion to dismiss the appeal is denied.

The next problem which we must solve is whether the trial court had personal jurisdiction over defendant in this case, despite the failure of plaintiff to file the officer's return of service of the summons until almost one year after service. Section 16 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 16) provides:

'(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the juridiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.

'(2) The service of summons shall be made in like manner as service within this State, by any person over 21 years of age not a party to the action. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.'

Supreme Court Rule 102(d) (Ill.Rev.Stat.1975, ch. 110A, par. 102(d)) provides:

'(d) Return. The officer or person making service shall make a return by filing proof of service immediately after service on all defendants has been had, and, in any event, shall make a return; (1) in the case of a summons bearing a specific return day or day for appearance, not less than 3 days before that day; (2) in other cases, immediately after the last day fixed for service. If there is more than one defendant, the proof of service shall, at the request of the plaintiff or his attorney, be made immediately after service on each defendant. In that case, the proof of service to be filed may be indorsed upon a copy of the summons and the original retained until service is had upon all defendants or until expiration of the time provided for service. The proof of service need not state whether a copy of the complaint was served. The officer or other person serving the summons may file proof of service by mail. Failure of the officer or other person to return the summons or file proof of service does not invalidate the summons or the service thereof, if had.'

In construing the relationship of these two provisions, we note section 2 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 2), which...