Ford v. Continental Illinois Nat. Bank & Trust Co.
| Citation | 18 Ill.App.3d 166,309 N.E.2d 332 |
| Decision Date | 27 February 1974 |
| Docket Number | No. 25762,No. 57448,25762,57448 |
| Parties | William G. FORD and Rudolph A. Cortez, Plaintiffs-Appellants, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY, as Trustee U/Tet al., and Howard Carroll, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Burke & Burke, Chicago (John M. Newell, Chicago, of counsel), for appellants.
William J. Harte, Chicago, for appellee, Howard Carroll.
This action was brought to recover damages for injuries sustained by plaintiffs on November 23, 1963 as the result of the alleged negligence of a number of defendants. The Carroll Chemical Company was one of the defendants named in the original complaint, filed November 17, 1964. On June 27, 1967, Howard Carroll, an officer of the Carroll Chemical Company, was added as a defendant in his individual capacity. Service was purportedly effected upon Howard Carroll on July 8, 1967. A default judgment was entered against Howard Carroll in the amount of $88,000 for plaintiff Ford and $7500 for plaintiff Cortez on February 4, 1970. There was no execution on the judgment.
On March 23, 1971, Howard Carroll filed a motion before Honorable Wilbert F. Crowley for leave to file a special and limited appearance to contest jurisdiction over his person and to vacate the default judgment entered against him. The motion alleged that Howard Carroll had never been personally served with summons. After hearing evidence on the motion, the trial court entered an order on February 15, 1972 granting Howard Carroll's motion to quash service of summons and vacating the judgment entered against him. The court further ordered that there was no just reason for delaying the enforcement and appeal of its order.
Plaintiffs have taken this appeal from the trial court's orders which quashed the service of summons and vacated the prior judgment against Howard Carroll. They present the following issues for our review:
1. Whether a sheriff's return of summons can be set aside on the uncorroborated testimony of the defendant challenging said service;
2. Whether the defendant, Howard Carroll, participated in this suit, thereby waiving any defect in the service of summons;
3. Whether the defendant, Howard Carroll, failed to object to the jurisdiction of the court in a timely manner, thereby waiving any defect in the service of summons.
An additional issue, raised by the defendant, is whether the order of the trial court from which plaintiffs appeal is an interlocutory order and, therefore, not appealable.
The facts pertinent on review are as follows: The complaint in this case was initially filed on November 17, 1964 against the Continental Illinois National Bank and Trust Company, as Trustee, and the Carroll Chemical Company. It charged that the plaintiffs, both employees of the Carroll Chemical Company, were injured on November 23, 1963 while 'lawfully plying their trade' as a proximate result of the negligence of the defendants. On March 30, 1966, plaintiffs noticed Ira Carroll and Howard Carroll, as 'president and secretary of defendant company, Carroll Chemical Co.,' for deposition. Howard Carroll gave his deposition pursuant to subpoena on March 9, 1967. He was represented by Attorney David Goodman.
Plaintiffs obtained leave of court on June 27, 1967, to file their second amended complaint. This complaint repeated in substance the allegations made in the original complaint and, in addition, named Ira Carroll and Howard Carroll, 'individually and d/b/a Carroll Chemical Co.,' as defendants with summons to issue. The summons was returned on July 8, 1967 as having been personally served upon Howard Carroll; the address listed for Howard Carroll on the summons was 6241 North Rockwell, Chicago, Illinois. The return of summons further indicated that Ira Carroll could not be located.
On January 3, 1968, a notice for the deposition of Howard Carroll was directed to Attorney David Goodman. Pursuant to this notice, Howard Carroll appeared and gave his deposition on March 6, 1968.
Plaintiffs' cause of action was dismissed for want of prosecution on January 21, 1970. On January 22, 1970, plaintiffs filed a notice of motion to vacate the order of dismissal; and the court entered an order reinstating the case on the same day. No notice of the motion to vacate the order of dismissal was given to the defendant, Howard Carroll, or his attorney.
The case reached trial on February 4, 1970. Ira Carroll was dismissed by the court because he had not been served with summons. Howard Carroll did not appear. A jury verdict was entered against Howard Carroll on the prove-up in the amount of $88,000 for plaintiff Ford and $7500 for plaintiff Cortez. The trial court entered judgment on the verdict in the amount of $95,500 plus costs. There was no execution on the judgment.
On March 23, 1971, Howard Carroll was granted leave to file a special and limited appearance to contest jurisdiction over his person. The special and limited appearance was accompanied by a motion to vacate the judgment entered against him on the ground that Howard Carroll had never been served with summons. At a hearing on the motion held before Judge Crowley on February 15, 1972, testimony was taken from Howard Carroll and David Goodman. Howard Carroll testified that, at the time he was purportedly served with summons, he resided at 6241 North Rockwell in Chicago, Illinois, with his mother and that his mother was on vacation in California from June 29, 1967 until July 15, 1967. Carroll testified further that he graduated from law school in the spring of 1967 and attended the Hardy Bar Review course during the summer of 1967. On July 8, 1967, Carroll stated that he studied at the Northwestern University library for the bar examination and that he was away from his residence from 8 a.m. until 10 p.m. At no time, according to Carroll, was he served with summons on July 8, 1967 or on any other date.
David Goodman testified that he was retained by Carroll Chemical Company in 1963 to represent it concerning the occurrence of November 23, 1963. He stated that he represented Howard Carroll in his capacity as an officer of the corporation at two depositions taken in connection with this lawsuit: according to Goodman, it was his understanding that the first deposition of Carroll was pursuant to subpoena and the second deposition was a continuation of the first. Goodman further testified that he received no notice of an amendment to the complaint naming Howard Carroll individjually as a defendant; that he had no knowledge at the time the depositions were taken that there had been a purported service upon Howard Carroll in his individual capacity; that he never filed a petition for Howard Carroll individually in that case; and, that he never voluntarily submitted Howard Carroll to the jurisdiction of the court.
At the conclusion of the hearing, the trial court granted Howard Carroll's motion to quash service of summons and to vacate the judgment entered against him. The court further found that there was no just reason for delaying the enforcement and appeal of its order. A notice of appeal was timely filed by plaintiffs-appellants.
Defendant, in his brief, argues that the order of the trial court vacating the judgment against him on the ground that he was not served with summons is an interlocutory order and, therefore, is not appealable. He contends that the order entered in this case is not a final judgment because it does not terminate the litigation between the parties on the merits. Carroll further contends that the trial court's order is not an interlocutory order from which an appeal may be taken as of right pursuant to Supreme Court Rule 307. Ill.Rev.Stat.1971, ch. 110A, par. 307.
Supreme Court Rule 304 provides:
If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Ill.Rev.Stat.1971, ch. 110A, par. 304.
We find that the order entered by the trial court complies with the requirements of Supreme Court Rule 304. The court made an express written finding that there was no just reason for delaying appeal. The order did not reinstate the cause on the trial calendar nor did it require Carroll to answer the allegations made in plaintiffs' complaint. In view of the above, we hold that this...
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