Lichter v. Scher

• Decision Date: 14 December 1954
• Docket Number: Gen. No. 46340
• Citation: 4 Ill.App.2d 37,123 N.E.2d 161
• Parties: Frank LICHTER, Lydia Flores, a minor, by Manuel Flores, guardian of her estate, Appellees, v. Phil SCHER and Morris Petchersky, d/b/a P. M. Liquor Store, Jack Spot Inn, Inc., a corporation, and Leonard A. Bauer, d/b/a Better Value Liquor Store, Defendants. Jack Spot Inn, Inc., a corporation, Appellant.
• Court: United States Appellate Court of Illinois

Page 161

123 N.E.2d 161

4 Ill.App.2d 37

Frank LICHTER, Lydia Flores, a minor, by Manuel Flores guardian of her estate, Appellees, v. Phil SCHER and Morris Petchersky, d/b/a P. M. Liquor Store Jack Spot Inn, Inc., a corporation, and Leonard A. Bauer d/b/a Better Value Liquor Store, Defendants. Jack Spot Inn Inc., a corporation, Appellant.

Gen. No. 46340.

Appellate Court of Illinois, First District, Second Division.

Dec. 14, 1954.

John J. Maciejewski, Chicago, Charles D. Snewind, Chicago, of counsel, for appellant.

David Alswang, Chicago, Alexander J. Reiff, Chicago, of counsel, for appellees.

SCHWARTZ, Presiding Justice.

This is an appeal from an order sustaining plaintiff Lydia Flores' motion to strike and dismiss a petition to vacate an ex parte judgment for $25,000 in favor of plaintiff and against Jack Spot Inn, Inc., one of the defendants.

Plaintiff brought this suit under the Dramshop Act, Ill.Rev.St.1953, ch. 43, § 94 et seq., to recover damages alleged to have been caused by defendant's sale of intoxicating liquor to plaintiff's mother, which resulted in poisoning and subsequent death. Summons issued and was returned by the sheriff as served on one Wakefield, a bartender employed in the dramshop. Defendant failed to file an appearance or answer and was defaulted. The case coming on for trial on December 13, 1951, plaintiff made proof and the court entered judgment against the Jack Spot Inn, Inc.

On September 16, 1953, defendant filed a petition supported by affidavits and therein moved to set aside and vacate the judgment. On October 23, 1953, this petition was amended. Following are the averments of the amended petition which we deem pertinent to the issues presented by the appeal: (1) that no service was made upon defendant's agent and that the return of the sheriff is false and untrue; (2) that defendant had no notice of the pendency of the suit or of the judgment entered against it because at the time of the entry of the judgment the defendant corporation had been dissolved, and that no officer or agent of the corporation had any notice of the alleged service of summons, default or judgment prior thereto; (3) that defendant denies it sold intoxicating liquors to the deceased which, in whole or in part, caused her alleged intoxication, and alleges that the deceased came to her death by poison self-administered. Plaintiff moved to strike the petition as amended. The court heard no evidence, either oral or by way of counter-affidavits, but sustained the motion and dismissed the petition.

All prior decisions relating to proceedings of this character must now be reconsidered in the light of Ellman v. DeRuiter, 1952, 412 Ill. 285, 106 N.E.2d 350, 354. In that case process had been served but the defendant, through mistake or misunderstanding as to the return day of the summons, failed to file his appearance on time. Default was taken and an ex parte judgment was entered at the same time that the plaintiff was negotiating with the defendant for settlement. The defendant was not informed of the judgment until more than thirty days after its entry. The court held that the proceeding was in the nature of a suit in equity; that while the Civil Practice Act has not effected a complete amalgamation of the practice and procedure in common law and suits in equity, there has been a fusion sufficient to enable a court of law, when the occasion demands it, to apply equitable principles in determining whether relief should be granted in such proceedings. The court decided that it was 'within the spirit of the Civil Practice Act, and within the scope of the function of the motion which has replaced the writ of error coram nobis, that defendant be given summary relief in this proceeding.'

The impact of the decision in Ellman v. DeRuiter, supra, was felt immediately on the civil procedure of this state. It has already been cited three times as controlling precedent on cases in point. In Tomaszewski v. George, 1953, 1 Ill.App.2d 22, 116 N.E.2d 88, the Third Division of this court had before it a case in which a deputy sheriff testified that when he served the summons on the defendant's wife, he did not disclose the contents to her and did not recall having mailed the defendant a copy. The court held that service was properly quashed and a default judgment set aside. Other instances of Appellate court action on the basis of Ellman v. DeRuiter, supra, are Admiral Corporation v. Newell, 1952, 348 Ill.App. 180, 108 N.E.2d 521, and Schnable v. Tuma, 1953, 351 Ill.App. 486, 115 N.E.2d 574. The net effect of those decisions was to carry out in differing factual situations the holding of the Ellman case.

In Lane v. Bohlig, 1953, 349 Ill.App. 487, 111 N.E.2d 361 the Third Division of this court held that to deny a motion similar to that made by defendant in the instant case, without holding a hearing or requiring the plaintiff to answer by counter-affidavits, was error in view of uncontroverted statements in affidavits in support of said motion. The only apparent difference between the Bohlig case and the instant case which is of any significance so far as the issue now under consideration is concerned is that in the former case the defendant's statements in support of his affidavits went uncontroverted, whereas in the instant case plaintiff filed a motion to strike the defendant's petition and supporting affidavits. Just as the affidavits in support of a defendant's motion must be taken as true when not controverted, Lane v. Bohlig, supra, so a motion to strike a petition must be taken to admit all well-pleaded allegations of fact. In re Estate of Tarpey, 1944, 322 Ill.App. 270, 54 N.E.2d 222, 224; Nikola v. Campus Towers Apt. Bldg., 1940, 303 Ill.App. 516, 527, 25 N.E.2d 582. It is in the light of the foregoing cases that we consider the sufficiency of the petition.

The allegation that no service of summons was made by the sheriff on the Jack Spot Inn, Inc., is supported by affidavits from two agents of the corporation, one of whom, Wakefield the bartender, denies that he was ever served. Plaintiff argues that there is a presumption in favor of a sheriff's return of service, American Insurance Co. v. Keefer, 1917, 208 Ill.App. 571, 576, and that a judgment based thereon will not be set...