Ogdon v. Gianakos

• Decision Date: 14 November 1952
• Docket Number: Gen. No. 9849
• Citation: 109 N.E.2d 628,348 Ill.App. 576
• Parties: OGDON et al. v. GIANAKOS.
• Court: United States Appellate Court of Illinois

Page 628

109 N.E.2d 628

348 Ill.App. 576

OGDON et al. v. GIANAKOS.

Gen. No. 9849.

Appellate Court of Illinois, Third District.

Nov. 14, 1952.

Rehearing Denied Jan. 12, 1953.

Henry I. Green, Oris Barth, Darius E. Phebus and Hurshal C. Tummelson, Urbana, for appellants.

Burt Greaves, Champaign, for appellee.

REYNOLDS, Justice.

This case grows out of an automobile collision which resulted in fatal injuries to the plaintiffs' intestate, Kenneth Wayne Ogdon. The cause was tried before a jury in the Circuit Court of Champaign County, and a verdict was returned in favor of the plaintiffs for the sum of $12,000. The court ordered the clerk to record the verdict and ordered judgment on the verdict in favor of the plaintiffs and against the defendant in the sum of $12,000. The defendant, Anthony L. Gianakos, apparently was in the military service of the United States and was represented by an attorney appointed to defend him. It does not seem that Gianakos was ever in court and service was in accordance with Paragraph 23, Chapter 95 1/2 of the Illinois Revised Statutes.

After the verdict of the jury and after the court had entered judgment in favor of the plaintiffs, the defendant made a motion for judgment notwithstanding the verdict, and in the alternative, a motion for a new trial. Before the court had passed on these motions, the defendant amended his motion for judgment notwithstanding the verdict, and in the amendment raised the question of jurisdiction. The court allowed the motion for judgment notwithstanding the verdict and ordered that judgment be entered in favor of the defendant and against the plaintiffs, and barred the action of the plaintiffs, and for costs of suit, and further ordered that the plaintiffs be forever barred from further prosecution upon the same cause of action against the defendant. There was no ruling on the motion for a new trial.

Although the trial in the Circuit Court was on the merits, it does not appear that any question of facts is at issue in this appeal. Instead, two questions are before us. First: Did the trial court have jurisdiction of the defendant? Second: If the court lacked jurisdiction could it legally enter the order of judgment notwithstanding the verdict, and the further judgment that the action of the plaintiffs be barred?

At the time of the accident, Paragraph 23, Chapter 95 1/2 of the Illinois Revised Statutes provided for service on nonresidents using Illinois highways but at the time of the accident, there was no provision for service on those residents of Illinois, who at the time of the accident were actual residents of Illinois, but subsequently became nonresidents. On August 10, 1949, Paragraph 23 was amended whereby the same machinery for securing service on nonresidents became available to the litigant against those who were residents at the time of the accident but subsequently removed from the State. This section of the law was added almost a year after the date of the accident that caused the death of plaintiffs' intestate. The amendment contained no retroactive language. In the absence of retroactive provisions, the rule of statutory construction is that it affects only those matters that happen after the adoption of the statute. In other words, it is prospective and not retroactive. Sanders v. Paddock, 342 Ill.App. 701, 97 N.E.2d 600; Rompza v. Lucas, 337 Ill.App. 106, 85 N.E.2d 467; New York Life Ins. Co. v. Murphy, 388 Ill. 316, 58 N.E.2d 182. The affidavit for service in this case shows that at the time of the accident, the defendant...