Phifer v. Hayes

• Decision Date: 25 June 1974
• Docket Number: No. 55798,55798
• Citation: 20 Ill.App.3d 635,314 N.E.2d 473
• Parties: Dillard J. PHIFER, Jr., Plaintiff-Appellee, v. William A. HAYES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 473

314 N.E.2d 473

20 Ill.App.3d 635

Dillard J. PHIFER, Jr., Plaintiff-Appellee, v. William A. HAYES, Defendant-Appellant.

No. 55798.

Appellate Court of Illinois, First District, Second Division.

June 25, 1974.

Rehearing Denied July 26, 1974.

Parrillo, Sims & Bresler, Chicago (Murray W. Sims, Jr., Chicago, of counsel), for defendant-appellant.

Karlin & Fleisher, Chicago (Barry M. Woldman, Chicago, of counsel), for plaintiff-appellee.

DOWNING, Justice:

Plaintiff-appellee Dillard J. Phifer, Jr. brought an action to recover damages occasioned by the alleged negligence of defendants William Hayes, Standard Oil Co., Booker Crockett, and Willie Thomas. In his complaint plaintiff alleged that Hayes struck and injured the plaintiff as Hayes drove his automobile on the premises of a Standard Oil gas station where the car was being repaired by Crockett and Thomas. Standard Oil Co. was dismissed from the case on its own motion and, on motion of the plaintiff, Crockett and Thomas were dismissed at trial. Judgment was subsequently entered in favor of the plaintiff in the amount of $10,000. Defendant Hayes now prosecutes this appeal from that judgment as well as from the trial court's order denying his petition to dismiss plaintiff's cause of action for lack of diligence in securing service of process on the defendant and denying his post-trial motion.

The sole issue on this appeal is whether the circuit court erred in concluding that the plaintiff exercised reasonable diligence in obtaining service of process upon defendant Hayes.

The following chronology of events sets out the pertinent facts of the case.

Nov. 15, 1962 Date of the accident resulting in plaintiff's injury.

Nov. 12, 1964 Plaintiff filed his complaint and placed a summons with the Sheriff of Cook County listing defendant's address as 720 E. 78th St., , Chicago.

Dec. 12, 1964 Summons returned 'not found.'

Aug. 19, 1966 Plaintiff placed his first alias summons, listing defendant's address as 720 E. 79th St.

Sept. 8, 1966 First alias summons returned 'not found.'

Oct. 29, 1968 Plaintiff placed a second alias summons, listing defendant's address as 720 E. 79th St.

Oct. 31, 1968 Second alias summons returned 'not found.'

Mar. 13, 1969 Plaintiff placed a third alias summons, listing defendant's address as 4049 S. Lowe.

Mar. 16, 1969 Third alias summons returned 'not found.'

Sept., 1969 Defendant moved from Chicago to California.

Nov. 15, 1969 Plaintiff contacted the law firm of Parrillo, Sims, and Bresler and was informed that defendant was residing in California.

Dec. 29, 1969 Plaintiff placed a fourth alias summons with the Illinois Secretary of State.

Jan. 5, 1970 Plaintiff sent notice of this last summons to defendant at 7049 S. Lowe.

Jan. 15, 1970 Parillo, Sims, and Bresler filed a special and limited appearance on behalf of defendant.

Thereafter defendant on March 12, 1970 filed his verified petition to dismiss plaintiff's cause of action due to lack of diligence in obtaining service of process upon defendant. Defendant alleged that he was first notified of this lawsuit when plaintiff issued the alias summons served on the Secretary of State on Dec. 29, 1969; that from 1962 until 1963 he lived at 720 E. 79th St.; that he then moved to 2109 E. 68th St. where he resided until 1964 when he moved to 7049 S. Lowe; that in 1965 he moved to 6400 S. Woodlawn where he remained until moving to California in Sept., 1969; and that, from the date of the accident until Sept., 1969, he was employed by Dyman and Anderson Construction Co., 5839 W. Cleveland, Morton Grove, Illinois, which information appeared on the police accident prevention report dated November 15, 1962, a copy of which report was attached as an exhibit to the verified petition.

Plaintiff filed no responsive pleading to defendant's petition; nevertheless, the court, on March 13, 1970, denied defendant's petition. Thereafter the cause was assigned to the trial judge on May 28, 1970. The cause was heard by the trial court without a jury and, having heard all the evidence, the trial court on June 1, 1970 found in favor of plaintiff. Judgment was entered on June 1, 1970 against defendant in the amount of $10,000.

In his post-trial motion on June 24, 1970, defendant requested that the judgment be vacated and entered in his favor or, in the alternative, that he be granted a hearing on his post-trial petition to dismiss pursuant to Supreme Court Rule 103(b) (Ill.Rev.Stat.1967, ch. 110A, par. 103(b)).

Responding to defendant's petition to dismiss, plaintiff on July 3, 1970 stated that the court did not err in refusing to hear the petition, and that, by his attorneys, he acted with all due diligence in obtaining service of summons upon defendant. In support of this statement, plaintiff's attorney submitted his affidavit wherein he detailed at some length his efforts to serve the defendant, stating that plaintiff had no knowledge of where defendant had been employed, and that none of the investigation or police reports submitted by his investigators contained that information.

After conducting a hearing on this matter, the trial court on Dec. 9, 1970 entered its order denying defendant's motion to vacate the judgment as well as the motion to dismiss the cause of action as to the defendant.

I.

Defendant points out that he did not learn of the pendency of the action or receive service of summons until seven years after the occurrence and five years after the statute of limitations would have run, had the action not been filed. He contends that any efforts to locate him made by plaintiff were minimal and do not meet the required standards of reasonable diligence.

Defendant based his petition upon Supreme Court Rule 103(b) which provides:

'Dismissal for Lack of Diligence. If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed with or without prejudice on the application of any defendant or on the court's own motion.' (Ill.Rev.Stat.1967, ch. 110A, par. 103(b).) ¹

This rule was intended to prevent the practice whereby a plaintiff would effectively circumvent the statute of limitations by filing suit within the applicable statutory period but then delay the service of process for an unreasonably long period of time (Kohlhaas v. Morse (1962), 36 Ill.App.2d 158, 162, 183 N.E.2d 16; Hansel v. Chicago Transit Auth. (1971), 132 Ill.App.2d 402, 409, 270 N.E.2d 553; Roberts v. Underwood (1971), 132 Ill.App.2d 439, 441, 270 N.E.2d 547). While prevention of intentional delay in the service of summons was a primary reason for passage of Rule 103(b) and its predecessors, the rule is not based upon the subjective test of plaintiff's intent but rather upon the objective test of reasonable diligence in effecting service. Caliendo v. Public Taxi Service, Inc. (1966), 70 Ill.App.2d 86, 88, 217 N.E.2d 369; Karpiel v. LaSalle National Bank of Chicago (1970), 119 Ill.App.2d 157, 160--161, 255 N.E.2d 61.

In Caliendo v. Public Taxi Service, Inc., Supra, which was a suit for personal injuries arising from an auto accident, the complaint was filed during April, 1962 and the summons was returned 'not found' one month later. Plaintiff made no further attempt to serve defendant until nearly 20 months later when plaintiff placed an alias summons which was served upon defendant. Defendant appealed, moved to dismiss the action pursuant to Supreme Court Rule 4(1), and filed an affidavit showing that, for each of the years in question, its correct address was ascertainable from various sources in which it was publicly registered. Plaintiff filed no counter-affidavits and the action was dismissed. In affirming the trial court's decision, this court quoted from Kohlhaas v. Morse, Supra, that:

'The unexplained failure to obtain service on a party until months after the statute had run could hardly be 'reasonable diligence to obtain service, * * *."

In Sullivan v. Nissen Trampoline Co. (1967), 82 Ill.App.2d 1, 226 N.E.2d 649 the summons placed by plaintiff at the time he filed suit was returned 'not found.' He did not take out an alias summons until two years later. Defendant's motion to quash the service of summons was allowed and, on appeal, this court affirmed that decision, stating that the corporate defendant was an Illinois corporation with a Chicago registered agent and no explanation was made for the delay in placing an alias summons for almost two years.

These opinions adequately demonstrate the negative position which has been taken by this court when asked to reverse the trial court's dismissal of a cause of action where the information needed to contact the defendant was available to the plaintiff and he nonetheless failed, without explanation, to obtain service of summons upon the defendant until long after the suit had been filed. Karpiel v. LaSalle National Bank of Chicago, Supra; Hansel v. Chicago Transit Auth., Supra; Roberts v. Underwood, Supra.

Having examined these and numerous other opinions cited by both parties in support of their...