Rompza v. Lucas
| Decision Date | 03 May 1949 |
| Docket Number | Gen. No. 10257. |
| Citation | 85 N.E.2d 467,337 Ill.App. 106 |
| Parties | ROMPZA v. LUCAS et al. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.
Action by Bernard Rompza against Lawrence Lucas and Philip Lucas to recover for injuries and property damage sustained as result of an automobile accident, wherein a default judgment was entered in favor of the plaintiff. From a judgment order vacating the judgment for the plaintiff, the plaintiff appeals.
Judgment order affirmed.David Pottishmann and Mulcahy, Murphy & Dieringer, all of Chicago, for appellant.
Snyder & Clarke, of Waukegan, for appellees.
On April 12, 1947 plaintiff filed his complaint in the Circuit Court of Lake County seeking to recover from the defendants compensation for personal injuries and property damage which he suffered on May 28, 1946 as the result of an automobile accident due, so he charged, to the negligence of the defendants while the automobile of the defendant, Philip Lucas was being driven by his agent, Lawrence Lucas, on Route No. 41, being one of the highways of this state.
On the same day the complaint was filed, a summons was issued returnable as provided by law. This summons was returned by the sheriff of Lake County on April 23, 1947 with the endorsement ‘The within named defendants not found in may County.’ A notice was filed with the clerk of the Circuit Court on June 20, 1947. The notice is as follows, viz:
‘State of Illinois Lake County} ss
In the Circuit Court of Lake County Bernard Rompza, Plaintiff
vs
Lawrence Lucas and Philip Lucas, Defendants} Case No. 49439
Notice
To:
Lawrence Lucas
1437 North 30th Avenue
Milwaukee, Wisconsin
Philip Lucas
2035 Galena Avenue
You are hereby notified that the above entitled action or proceeding against you is one growing out of your use or operation of a motor vehicle over the highways of the State of Illinois, resulting in damage to person or property or both.
You are further notified that less than ten days prior to the date hereof on, to-wit the 18 day of April, 1947, the undersigned caused summons in the above entitled suit to be served on Edward J. Barrett, Secretary of State, Springfield, Illinois, as your true and lawful attorney, by the filing of a copy of such process in his office, and that simultaneously therewith the undersigned paid to said Secretary of State the requisite statutory fee of Two Dollars ($2.00) therefor. An additional copy of such process is enclosed herewith and is hereby sent to each of you by registered mail, in accordance with the statutes of the State of Illinois in such case made and provided.
Dated this 19 day of April, 1947 at Chicago, Illinois.
By Henry W. Dieringer /signed/
Attorney for the Plaintiff'
An affidavit of compliance was also filed with the clerk on June 20, 1947 and is as follows:
‘State of Illinois Lake County} ss
In the Circuit Court of Lake County Bernard Rompza, Plaintiff
vs
Lawrence Lucas and Philip Lucas, Defendants} Case No. 49439
Henry W. Dieringer, being first duly sworn, on oath deposes and says that he is one of the attorneys and the duly authorized agent of and for Bernard Rompza, plaintiff, in this behalf; that he has knowledge of the facts; that the defendants, Lawrence Lucas is a non-resident of this state; that the address of said defendant last known to plaintiff and to this deponent is; 1437 North 30 th Avenue, Milwaukee, Wisconsin; that the defendant, Philip Lucas, is a non-resident of this state; that the address of said defendant last known to the plaintiff and to this deponent is: 2035 Galena Avenue, Milwaukee, Wisconsin; that the above entitled action is one growing out of the use or operation of a motor vehicle by the defendants over the highways of the State of Illinois, resulting in damage or loss of to the person or property of the plaintiff; that on the 18 day of April, 1947, deponent filed in the office of Edward J. Barrett, Secretary of State, at Spring-field, Illinois, a true and correct copy of the attached summons; that upon the filing of said copy, deponent paid to said Secretary of State the fee of Two Dollars ($2.00) required by law; that within ten days thereafter, on, to-wit: the 22 day of April 1947 deponent served upon the said defendants a true and correct copy of the summons and also a notice of the filing of the bond and a copy of the summons in the office of the Secretary of State and the payment of the fee therefor as hereinbefore described, by mailing the same, registered, at the United States Post Office at Chicago, Illinois, enclosed in a sealed envelope with postage and registry fees fully prepaid, addressed to Lawrence Lucas, 1437 North 30th Avenue, Milwaukee, Wisconsin and that to Philip Lucas, 2035 Galena Avenue, Milwaukee, Wisconsin; that a true and correct copy of said notice so mailed as aforesaid is attached hereto as ‘Exhibit A’.
Deponent further says that thereafter, on the 23 day of April, 1947, there was delivered to deponent by the United States Post Office a printed form of return receipt, signed with the names of the defendants and acknowledging receipt by said defendants of said registered mail.
Further deponent sayeth not.
Henry W. Dieringer /signed/
One of the Attorneys and agent for Plaintiff in this behalf.
Subscribed and sworn to before me this 23 day of April 1947.
David Pottishmann /signed/
(Seal) Notary Public'
On the same day, June 20, 1947, the defendants were defaulted and on that day a hearing was had in part which was concluded on June 23, 1947 resulting in a judgment being rendered by the Circuit Court in favor of the plaintiff and against the defendants for $2500.00 and costs of suit. On July 2, 1947 an execution was issued upon the judgment which was, on July 14, 1947, returned in no part satisfied by the sheriff of Lake County. Subsequently and on December 24, 1947 upon notice and motion of the defendants, the court vacated the judgment of June 20, 1947 and set aside the default and reinstated the cause upon the docket of the circuit court. To reverse this judgment order of December 24, 1947 this appeal has been prosecuted by the plaintiff.
It is contended by counsel for appellees and so held by the trial court that the constructive or substituted service on appellees was defective first, because the affidavit of compliance failed to affirmatively establish that appellees were, on the day of the accident, May 28, 1946, non-resident users of a highway of this state and second that appellant failed to append his affidavit of compliance to the summons and to return the summons with the affidavit appended or attached to it
It is insisted by counsel for appellant that they have complied with the provisions of the statute in every respect and that there is nothing in the statute which requires the plaintiff to set forth in any particular way that the defendants were, at the time of the accident, or at any other time, non-residents, that the affidavit of compliance shows the address of defendants and thereby denotes that they were non-residents of this state. Counsel argue that it is physically impossible to attach an affidavit of compliance to the original summons because the affidavit of compliance can only be completed after service of process was had not Secretary of State.
The pertinent provisions of the Statute providing for service of process on a nonresident motor vehicle operator is as follows:
(Chap. 95 1/2, Sec. 20a, Par. 23, Ill.Rev.St.1945).
A party claiming constructive service must show a strict compliance with every requirement of this section. Burdick v. Powell Bros. Truck Lines, 7 Cir., 124 F.2d 694, 697;Correll v. Greider, 245 Ill. 378, 92 N.E. 266,137 Am.St.Rep. 327;Brammall v. LaRose, 105 Vt. 345, 165 A. 916;Donnelly v. Carpenter, 55 Ohio App. 463, 9 N.E.2d 888. What then are the requirements of the Statute? First, process must be served upon the Secretary of State, either, (a) by serving a copy upon him or (b) by filing such copy in his office together with a fee of two dollars. Appellees do not contend that this was not done in the instant case. The statute then requires that notice of such service and a copy of the...
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