Danoff v. Larson

• Decision Date: 08 June 1938
• Docket Number: No. 24444.,24444.
• Citation: Danoff v. Larson, 368 Ill. 519, 15 N.E.2d 290 (Ill. 1938)
• Parties: DANOFF v. LARSON.
• Court: Illinois Supreme Court

368 Ill. 519

15 N.E.2d 290

DANOFF

v.LARSON.

No. 24444.

Supreme Court of Illinois.

April 15, 1938.

Rehearing Denied June 8, 1938.

Action by Herbert J. Danoff against Robert Larson for merchandise sold and delivered. From an order overruling defendant's motion to quash the summons and vacate a default judgment for plaintiff, defendant appeals.

Reversed and remanded, with directions.Appeal from Municipal Court, of Chicago; Samuel H. Trude, judge.

Maclay & Hodgson, of Chicago, for appellant.

John J. Sonsteby, of Chicago, amicus curiae.

SHAW, Justice.

Plaintiff (appellee here) sued in the municipal court of Chicago for merchandise sold and delivered; summons was issued and was returned ‘not found.’ Three alias summonses were subsequently issued and were likewise returned ‘not found.’ The bailiff reported to the court that several attempts had been made to serve the defendant at his place of business, but that on each occasion the person in charge of the office stated that the defendant was not in. The court then entered an order directing service of the summons by delivering a copy thereof, together with a copy of the papers attached thereto, stamped by the clerk ‘A true copy,’ to the defendant at his place of business or by serving some person employed in the defendant's place of business and by sending a copy thereof, together with a copy of the papers attached thereto, to the defendant at his place of business, by United States mail, with postage fully prepaid. Service was had in compliance with this order, defendant was defaulted for want of appearance, judgment was rendered against him, and execution issued on that judgment. Upon return of the execution unsatisfied, garnishment proceedings were commenced, and after service upon the garnishee, defendant filed, and the court overruled, a motion to quash the summons and to vacate the judgment. This appeal was taken from that order.

The defendant contends that no personal service was had upon him, service not having been made according to statute, and that, therefore, the judgment rendered in the municipal court of Chicago is void. He also contends that the determination of the manner in which summons shall be served is a legislative function; that the Legislature has prescribed the manner in which summons shall be served in the courts of Illinois, including the municipal court of Chicago; that section 20 of the Municipal Court Act, Ill.Rev.Stat.1937, c. 37, § 375, properly construed, does not permit the judges of the municipal court to regulate the manner of service of summons, as that section applies only to rules of practice; that service in any other manner than that provided by statute is void and confers no jurisdiction; and that section 20 of the Municipal Court Act is unconstitutional, as an unlawful delegation of legislative authority, if it be construed to mean that the judges of the municipal court are given authority to make such determination.

Service of summons in this case was had under rule 10A of the civil practice rules of the municipal court, particularly that part of the rule which provides as follows: ‘In any case in which an officer is unable from any cause to make due service of a summons the court, upon application therefor, and upon notice to the bailiff, may direct such service to be made in such manner as the court may deem proper.’

The Legislature has prescribed the manner in which summons shall be served generally, Ill.Rev.Stat.1937, c. 110, § 137, and has also prescribed the manner in which summons shall be served in the municipal court of Chicago, Ill.Rev.Stat.1937, c. 37, § 397. The provision for service in the municipal court of Chicago, however, is a part of an act, Ill.Rev.Stat.1937, c. 37, § 356 et seq., entitled ‘An Act in relation to a municipal court in the City of Chicago,’ adopted pursuant to section 34 of article 4 of the Constitution, Ill.Rev.Stat.1937, Const. art. 4, § 34. Section 20 of the Municipal Court Act, Ill.Rev.Stat.1937, c. 37, § 375, provides that the judges of that court shall have power to adopt, in addition to or in lieu of the provisions therein contained, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice. It appears, therefore, that the Legislature has delegated to that court the power to prescribe its own rules of practice in addition to or in lieu of the provisions made in respect thereto by the Legislature. This delegation of rule-making power has been held constitutional. Hopkins v. Levandowski, 250 Ill. 372, 95 N.E. 496;People v. Gill, 358 Ill. 261, 193 N.E. 192;Ptacek v. Coleman, 364 Ill. 618, 5 N.E.2d 467.

No case has been called to our attention in which it has been held that the power to make rules of practice extends so far as to give a court power to prescribe the time or manner of serving initial process. In Union Nat. Bank of Chicago v. Bryam, 131 Ill. 92, 22 N.E. 842, we said that the word ‘PRACTICE,’ AS USED IN THE ATTACHMENT ACT, smith-hurd stats. c. 11, § 1 et seq., included the mode of serving intermediate, and the mode of executing final, process. The only question in that case, however, was whether or not shares of stock in an incorporated company were subject to attachment. In the later case of ...