Pyle v. Groth
| Decision Date | 06 November 1957 |
| Docket Number | Gen. No. 47128 |
| Citation | 15 Ill.App.2d 361,146 N.E.2d 219 |
| Parties | Nova PYLE, Appellant, v. Fred O. GROTH, Appellee. |
| Court | United States Appellate Court of Illinois |
Edward F. Moye, Chicago, for appellant.
McBride & McLennon, Chicago, (Thomas G. McBride, Chicago, of counsel), for appellee.
On October 25, 1955 plaintiff brought suit to recover damages for personal injuries sustained by her as the result of a fall down an unobstructed stairway while she was inspecting a house owned by defendant in Park Ridge, Illinois which he was exhibiting to the public and offering for sale. Summons issued forthwith, was delivered to the sheriff of Cook County for service and was returnable November 21, 1955. On November 1, 1955 summons was filed in the clerk's office bearing the following return by the sheriff: Thereafter, on December 7, 1955, an order of default was entered against defendant for want of an appearance. About a week later the case was assigned for trial, and on December 19, 1955 judgment was entered in favor of plaintiff for $18,500 and costs. The order recited that the court had heard the testimony of plaintiff and that of Dr. Richard J. Bennett, Jr., on her behalf. Later, on February 2, 1956, an execution was issued, directed to the sheriff of Lake County, and on February 15, 1956 was served on defendant, who on February 28, 1956 filed a petition to vacate the judgment. In July 1956 the matter came on for hearing on defendant's petition and plaintiff's answer thereto. The trial court entered an order vacating the judgment and quashing the return of summons, from which plaintiff appeals.
Defendant alleged in his petition, and here contends, that the sheriff's return on the summons showing personal service on October 29, 1955 was false, that defendant was not served and did not know of the pendency of the action or of the judgment until he was served with an execution in February 1956. On the other hand, plaintiff's answer alleges, and on appeal she contends, that defendant was served with summons on the day in question, that the sheriff's return was correct, and that accordingly the original judgment in her favor should stand.
On hearing of the petition and answer, Deputy Sheriff Samuel Wolinsky testified that he served summons on defendant at his residence at 532 Briarhill Road, Deerfield, Illinois, and signed the return on the summons; that he and his partner, Deputy Sheriff Joseph Maggiore, made service on the morning of Saturday, October 29, 1955; that on that date he and Maggiore had been assigned to meet their superior officer, Edward E. Lavin, Assistant Chief Bailiff, at 9:00 a. m. at the Morton Grove Police Station in Cook County to search the neighborhood fields and woods in connection with the murder of three boys; that he arose at 6:30 a. m., met Maggiore at 7:00 a. m., had breakfast with him in a restaurant, which took about ten minutes, and that together they went to Deerfield, arriving there about 8:00 a. m.; that because they were strangers in the area they asked a Deerfield police officer to direct them to defendant's residence at 532 Briarhill Road; that they were told they would recognize the street by stone pillars bearing the street name Briarhill Road; that they found the pillars as directed and located the Groth residence; that they drove their car into the driveway, where they parked it, and walked to the house and rang the bell; that a man in pajamas came to the door, that he asked him his name, and that the man said it was Groth; that he then told him that he had a summons for him, gave him a copy of it, and thereupon left with his partner Maggiore; and that he had no watch with him, but he reckoned that he drove into the grounds of defendant's residence at some time between 8:00 and 8:30 a. m. After serving the summons the two deputies got in their car and reached Morton Grove about 9:30 a. m. They had been directed to meet Lavin there at 9:00 a. m. but were late for the roll call. Wolinsky told Lavin that the reason for their tardiness was that they had made a service of summons in Deerfield. Later he handed the summons to the clerk in the sheriff's office, who stamped it, and Wolinsky signed the return and put it in the basket. Maggiore's testimony, with some slight variations which are inconsequential, was to the same effect.
Edward E. Lavin, testifying on behalf of plaintiff, stated that on October 28, 1955 the bailiffs in the sheriff's office, including Wolinsky and Maggiore, were ordered to report to the Milwaukee Avenue Highway Police Station at 9:00 a. m. on the following day. The weather that day was bad--the sheriff himself was delayed--and several of the deputies were late. The roll call was not begun until about nine-fifteen. Wolinsky and Maggiore arrived after roll call and explained to Lavin that their tardiness was the result of their having served a summons in Deerfield. Lavin immediately reported this to Dan Smith, Assistant Chief Deputy Sheriff, as the reason for their late arrival. He did not recall the exact time that Wolinsky and Maggiore appeared, but his best recollection was that they came between nine and ten.
Dan Smith, also called as a witness on behalf of plaintiff, testified that he had called this meeting of sheriff's employees for 9:00 a. m. on October 29, 1955; that Maggiore and Wolinsky were absent when he called the roll at nine-fifteen, but that before the deputies left on their assignment Lavin brought the men over to him. All the men were in the territory assigned to them between nine-thirty and ten.
As against this evidence defendant offered his own testimony, and that of his wife Eleanor and his twenty-one year old daughter Dianne, who all stated that neither Deputy Maggiore nor Wolinsky came to defendant's home on October 29, 1955, and that no copy of a summons was left there on that date. Defendant testified that he and his wife breakfasted together some time after seven, that their daughter joined them shortly before they were finished, that he scanned the newspaper before leaving about nine with his wife for an appointment at Touhy Avenue and Dee Road in Park Ridge, which was about a twenty-five to thirty minute ride, and that he arrived for his appointment about nine-thirty. Mrs. Groth's testimony substantially paralleled that of her husband; she stated that...
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...cites, Mordecia v. Michicich, 45 Ill.App.2d 238, 195 N.E.2d 441; Hines v. Smith, 29 Ill.App.2d 35, 172 N.E.2d 429; Pyle v. Groth, 15 Ill.App.2d 361, 146 N.E.2d 219; and Marnick v. Cusack, 317 Ill. 362, 148 N.E. 42; for the sound legal proposition that where a natural person challenges a ret......
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