Martin v. Lozada

• Decision Date: 25 September 1974
• Docket Number: No. 58562,58562
• Citation: 318 N.E.2d 334,23 Ill.App.3d 8
• Parties: Henry MARTIN, Plaintiff-Appellant, v. Jorge LOZADA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 334

318 N.E.2d 334

23 Ill.App.3d 8

Henry MARTIN, Plaintiff-Appellant, v. Jorge LOZADA, Defendant-Appellee.

No. 58562.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 25, 1974.

Kiriakos Kanellos, Chicago, for plaintiff-appellant.

Irving Goodman, and William L. Silverman, Chicago, for defendant-appellee.

ADESKO, Presiding Justice:

On November 6, 1970, one day prior to the expiration of the applicable statute of limitations, Henry Martin filed a complaint in the Circuit Court of Cook County seeking damages for personal injuries which he said were sustained when he was struck by a motor vehicle driven by the defendant, Jorge Lozada. This complaint was ultimately dismissed with prejudice pursuant to Supreme Court Rule 103(b) (Ill.Rev.Stat., 1971, ch. 110A, par. 103(b)) on May 23, 1972. Plaintiff appeals this order contending that he had not failed to exercise reasonable diligence to obtain service and therefore that the dismissal with prejudice was error. The facts of this case are as follows:

Following the filing of the complaint on November 6, 1970, a summons was issued and placed for service with the Sheriff of Cook County. The address listed on the summons was 947 West Cullom, Chicago, Illinois. This summons was returned on December 7, 1970 with the notation 'not found.' Though this notation indicates that service was not obtained on the defendant, plaintiff admits in his brief that the Sheriff's return was not examined at this time. On February 17, 1971, plaintiff's attorney stated that he received a telephone call from a Sidney L. Pollack. Mr. Pollack said that he represented the defendant. After a brief conversation Mr. Pollack promised to send copies of defendant's income tax returns to plaintiff's attorney to establish his present financial condition. These returns were never received by plaintiff's attorney and no further conversation ever took place with Mr. Pollack, nor was any other action taken in regard to this matter until the case came up on the 'No Progress' call in the Circuit Court and was dismissed for want of prosecution on December 7, 1971. At this point plaintiff's counsel examined the 'case file' for the first time and discovered that the defendant had not been served. A letter was sent to the Secretary of State requesting defendant's address. The building on Cullom was checked and defendant's name was found to be listed there.

On January 26, 1972, the Circuit Court granted plaintiff's motion to vacate its order of dismissal, following which an alias summons was served on defendant at 947 West Cullom, Chicago, Illinois. Defendant filed a special, limited appearance and asked that the complaint be dismissed pursuant to Supreme Court Rule 103(b). Defendant and his brother stated that they had lived at 947 West Cullom, Chicago, Illinois, for the past five and six years respectively, that their names had been posted on the doorbells at that address during that time, and that defendant had been amenable to service at that address during this period. Plaintiff's attorney then filed an affidavit in which the conversation with Mr. Pollack was related. On May 23, 1972, defendant's motion was granted, the action being dismissed with prejudice pursuant to Illinois Supreme Court Rule 103(b). This rule provides as follows:

'(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonsable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion.' (Ill.Rev.Stat., 1971, ch. 110A, par. 103(b).)

Plaintiff's argument in the instant appeal begins with a misconception regarding the respective burden imposed on each side in proceedings under Rule 103(b). We are urged to reverse the order of the trial court since defendant had '* * * failed to make out any case of lack of diligence on the part of plaintiff in obtaining service of summons on the defendant.' The burden of demonstrating reasonable diligence to obtain service rests not with defendant, once he has made his Prima facie showing, but with the plaintiff. As we stated in Alsobrook v. Cote, 133 Ill.App.2d 261, 264, 273 N.E.2d 270, 272:

'The Rule (Illinois Supreme Court Rule 103(b)) does not set a specific time limitation within which a defendant must be served, but it does put the burden upon the plaintiff to show that he has exercised reasonable diligence to obtain service. Mosley v. Spears, 126 Ill.App.2d 35, 261 N.E.2d 510.'

We further note that a motion to dismiss for lack of reasonable diligence to obtain service under Rule 103(b) is addressed to the 'sound discretion of the trial court. A reviewing court may upset the trial court's ruling on the motion where there is an abuse of discretion.' Galvan v. Morales, 9 Ill.App.3d 255, 257, 292 N.E.2d 36, 38. See also Mosley, cited above, and Karpiel v. LaSalle Nat. Bank of Chicago, 119 Ill.App.2d 157, 255 N.E.2d 61.

We are of the opinion that in the instant case plaintiff did not exercise reasonable diligence to obtain service of summons on the defendant and that the trial court did not abuse its discretion in dismissing the action with prejudice. The summons was returned to plaintiff's attorney, with the notation that would have shown at once that service had not been obtained on defendant on December 7, 1970. It is undisputed in the record before us that this return was not examined at this time. After more than two months passes the telephone conversation with Mr. Pollack, related above, took place. The promised copies of the tax returns were never sent to plaintiff's attorney. The record does not show any further conversation with Mr. Pollack or that any attempt to contact him was made, though almost ten months passed before the case was dismissed for want of prosecution. The return was then examined for the first time and the fact that service had not been obtained upon defendant discovered. It was hardly an abuse of discretion for the trial court to rule that this sequence of events did not demonstrate a reasonable exercise of diligence on the part of plaintiff to obtain service.

Plaintiff does not dispute that these events took place, but submits that as a result of the telephone conversation that plaintiff's attorney states he had with Mr. Pollack, he was 'deluded' into believing that defendant had been served and '(t)herefore the Sheriff's return was not examined.' It is argued that this telephone conversation proved that defendant had actual knowledge of the complaint filed and that the dismissal under Rule 103(b) was not proper. We disagree.

Plaintiff's argument rests primarily for support on Alsobrook v. Cote, cited above, when raising the question of defendant's actual knowledge of the complaint filed. This knowledge is, however, merely one factor out of many which this court may...