Evans v. Advance Schools, Inc.

• Decision Date: 03 April 1979
• Docket Number: No. 78-1060,78-1060
• Citation: 27 Ill.Dec. 40,388 N.E.2d 1003,70 Ill.App.3d 947
• Parties: , 27 Ill.Dec. 40 James W. EVANS, Plaintiff-Appellee, v. ADVANCE SCHOOLS, INC., et al., an Illinois Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1003

388 N.E.2d 1003

70 Ill.App.3d 947, 27 Ill.Dec. 40

James W. EVANS, Plaintiff-Appellee, v. ADVANCE SCHOOLS, INC., et al., an Illinois Corporation Defendant-Appellant.

No. 78-1060.

Appellate Court of Illinois, First District, Second Division.

April 3, 1979.

Deborah L. La Dolce, Chicago (Walsh, Case & Coale, Chicago, of counsel), for defendant-appellant.

Oliver H. Harris, III, Evanston, for plaintiff-appellee.

DOWNING, Justice:

Defendant appeals an order of the circuit court of Cook County denying its motion to dismiss plaintiff's petition registering plaintiff's California default judgment in the circuit court of Cook County. The sole issue on appeal is whether the trial court erred in finding that the California court had obtained personal jurisdiction over the defendant.

In March 1976, the plaintiff filed a class action in a California municipal court, alleging that the defendant had induced him and other similarly situated California residents to enroll in its private vocational school through false representations concerning the availability of federally insured student loans. Copies of the summons and complaint were mailed, return receipt requested, to the defendant's registered agent, Sherman T. Christensen, in Illinois. The relevant portions of the return are as follows:

"I served the summons and complaint as follows:

1. Defendant's name: Advance Schools, Inc.

2. Person served and title: Sherman J. Christensen ¹

5. Mailing date, type of mail and place of mailing: 4/27/76; Certified, airmail; Berkeley, California

6. Address, city and state (when required indicate whether address is home or business): business; 5944 North Newark Avenue, Chicago, Illinois 60631 ²

7. Manner of service: (Certified or registered mail service) By mailing to address outside California (by registered or certified airmail with return receipt requested) copies to the person served (CCP 415.40). Attach signed return receipt or other evidence of actual delivery to the person served.

8. The following notice appeared on the copy of the summons served (CCP 412.30 or 474)

You are served on behalf of: Advance Schools, Inc.

Under: CCP 416.10 (Corporation)

Other: CCP 415.40."

Upon obtaining a judgment for $1,169.09 by default, the plaintiff filed a petition to register this judgment in the circuit court of Cook County pursuant to the Uniform Enforcement of Foreign Judgments Act. (Ill.Rev.Stat.1977, ch. 77, pars. 88-105.) The defendant's motion to dismiss supported by Grace Christensen's affidavit asserted Inter alia that the return receipt had been signed by its agent's wife, Grace Christensen, thus, indicating that its agent had not been properly served with the summons and complaint. The defendant therefore concluded that the California court had not obtained personal jurisdiction over it, rendering its judgment void.

Following plaintiff's reply, the defendant's responses, and hearing, the trial court found that the California court had been satisfied by the evidence that service had been made upon Sherman T. Christensen in accordance with the California statutes. Accordingly, the defendant's motion to dismiss the plaintiff's petition was denied. The defendant appeals this denial. Ill.Rev.Stat.1977, ch. 77, par. 98.

I.

When asked to register a foreign judgment pursuant to the Uniform Enforcement of Foreign Judgments Act (Ill.Rev.Stat.1977, ch. 77, pars. 88-105), this court may inquire into the proceedings of a court of a sister state to determine whether such court had jurisdiction of the subject matter and of the parties (Davis v. Nehf (1st Dist.1973), 14 Ill.App.3d 318, 321, 302 N.E.2d 382). If this inquiry reveals an error which would either (1) render the foreign judgment void according to the law of the foreign state, or (2) deprive the foreign court of jurisdiction over the contesting party according to the general constitutional principles of due process, the foreign judgment has no constitutional claim to full faith and credit (Kolman v. National Racing Affiliates, Inc. (1st Dist.1965), 64 Ill.App.2d 61, 64, 212 N.E.2d 313).

However, where a judgment has been rendered by a court of general jurisdiction, there is a strong legal presumption that the court had jurisdiction to render the judgment and that its proceedings conformed to the law of the state in which it was rendered. (Nelson v. Sutton (2nd Dist.1924), 232 Ill.App. 93, 100.) As stated more fully in Forrest v. Fey (1905), 218 Ill. 165, 169-70, 75 N.E. 789, 791:

"Where a court of general jurisdiction proceeds to adjudicate a cause there is a presumption of jurisdiction; but this presumption applies only when the record is silent upon the question, and if there is an affirmative showing in the record that there was no jurisdiction the judgment or decree will be void. Where the decree is silent as to the jurisdiction of the court over the defendants, if there is no evidence showing that jurisdiction was not acquired, it will be presumed that the court had jurisdiction. (Citations omitted.) Where a decree is silent as to the service of process, and the summons in the case shows want of or insufficient service, the presumption of jurisdiction is overcome. (Citations omitted.) If it appears from the whole record in a case that the court did not have jurisdiction, the presumption in favor of jurisdiction is overcome. (Citations omitted.) When the record itself shows a service which is insufficient and there is no finding from which it may be presumed that there is another service, the presumption in favor of jurisdiction is rebutted. (Citations omitted.) Where the record itself shows that notice was not given as required by law the jurisdiction does not attach, and where it shows that the finding of jurisdiction upon which the court acted was insufficient the finding of the court as to its jurisdiction is not conclusive, * * *."

The California decree is silent as to its jurisdiction over the defendant. Therefore, the presumption applies and the defendant's plea denying the jurisdiction of the court must, by certain and positive averments, negate every fact from which the jurisdiction of the court could arise. Welch v. Sykes (1846), 8 Ill. 197, 200-01.

A.

The evidence in the record before this court establishing facts from which the California court's jurisdiction could arise consists of the return showing that the plaintiff's summons and complaint were properly served in accordance with section 415.40 of the California Code of Civil Procedure which provides as follows:

"A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by any form of airmail requiring a return receipt. * * *" (Cal.Civ.Proc.Code 1969, sec. 415.40.)

Those persons to be served under section 415.40 are enumerated in the following pertinent parts of section 416.10 (see Judicial Council Comments, Cal.Civ.Proc.Code 1969, sec. 415.40):

"A summons may be served on a corporation by delivering a copy of the summons and of the complaint:

(a) To the person designated as agent for service of process * * * ;

(b) To the president or other head of the corporation, a vice-president, a secretary, or assistant secretary, a treasurer or assistant treasurer, a general manager, or A person authorized by the corporation to receive service of process ; * * *."

(Cal.Civ.Proc.Code 1969, sec. 416.10.) (Emphasis added.)

Proof of service made pursuant to section 415.40 is governed by section 417.20:

"Proof that a summons was served on a person outside this state shall be made:

(a) * * * if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence. " (Cal.Civ.Proc.Code 1969, sec. 417.20.)

Sherman T. Christensen, the defendant's agent whose name appears on the return as the person to be served, did not sign the return receipt. However, based on the following authority and the absence of any California cases requiring his signature as the only proof of service, it is our opinion that the California legislature did not so intend.

First, section 415.30 (Cal.Civ.Proc.Code 1969, sec. 415.30) providing for service by mail on persons within California, and adopted at the same time as section 415.40, expressly requires that the person to be served or his agent sign and return an acknowledgment of receipt a style is set out in the section which must be served with the summons and complaint. ³ We believe that if the legislature had intended proof of service to be established only by the signed return receipt of the person served under section 415.40, that provision would have been drafted as specifically as section 415.30.

Secondly, in addressing the same issue as here, the court in Bay Plaza Management Company v. Estep (1974), 269 Or. 275, 525 P.2d 56, rejected the defendant's contention that his signature on the return receipt was required for proof of service had in accordance with section 415.40. Although there are marked differences between the "other evidence" of actual receipt in Bay Plaza and in the record before this court, these differences do not detract from that court's interpretation of the California statute that the addressee's signature is not required to prove that service was made.

Finally, the Judicial Council Comments to section 417.20 refer to Aero Associates, Inc. v. La Metropolitana (S.D.N.Y.1960), 183 F.Supp. 357 for the types of evidence of delivery that may be satisfactory to a court when the return receipt is not available. In that case, the plaintiff, a New York corporation, brought suit against several Latin American corporations acting as a reinsurance group. Process was served by serving the Deputy Superintendent of Insurance of New York pursuant to the New York insurance law, and copies of the...