Schnable v. Tuma
| Decision Date | 10 November 1953 |
| Docket Number | Gen. No. 45997 |
| Citation | 115 N.E.2d 574,351 Ill.App. 486 |
| Parties | SCHNABLE v. TUMA. |
| Court | United States Appellate Court of Illinois |
Edward T. Duday and George T. Murphy, Jr., Chicago, for appellant.
Erwin H. Wright and James E. Hastings, Chicago, for appellee.
This is an action for personal injuries. Process was purported to have been served on the defendant and he failed to appear and answer the complaint. A default order was entered against him and the trial court at an ex parte hearing found for the plaintiff and entered judgment for the sum of $10,000. Defendant filed a motion and petition to set aside and vacate the judgment. After a hearing the trial court vacated and set aside the judgment and granted the defendant leave to appear and answer the complaint. Thereafter plaintiff filed a motion and petition to vacate the order setting aside the judgment, which after a hearing the trial court denied.
Plaintiff appeals from this order contending that (1) the trial court could not vacate and set aside the judgment because of lack of jurisdiction of the person when the sheriff's return disclosed personal service of the defendant on the basis of defendant's unsupported denial of service; and (2) the trial court erred in denying plaintiff's motion to set aside the order vacating the judgment. Defendant urges that under the liberal doctrine of Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350, the trial court was justified in entering the orders. An understanding of these issues requires a statement of the pertinent parts of the record.
On April 7, 1948, the defendant owned and operated four drug stores, one of which was located at 6800 West Roosevelt road, Oak Park, Illinois, and a second at 6756 West Cermak road, Berwyn, Illinois. Plaintiff while a patron in the drug store at 6800 West Roosevelt road, Oak Park, Illinois, on this date, sustained personal injuries resulting from sitting on a soda fountain stool that had no seat. The injuries consisted of a fractured forearm. A complaint was filed and summons directed to the sheriff with directions to serve defendant at 6800 West Roosevelt road, Oak Park, Illinois. The summons was returned and filed with the clerk showing personal service on the defendant, on April 21, 1949. On January 28, 1952, apprximately 33 months after service of summons, an order was entered defaulting the defendant. On February 7, 1952, at an ex parte hearing, judgment was entered against the defendant for $10,000. The execution was not issued until more than thirty days after the entry of the judgment and was served on the defendant on April 6, 1952. On April 25, 1952, defendant filed his motion and petition to set aside and vacate the judgment.
At the hearing defendant called as his witness the deputy sheriff who served the writ. He stated that he did not independently remember serving the summons on the defendant. During the period he was in the sheriff's office from January of 1946 to January of 1950, he had served several thousand writs. He identified his signature on the return and said that if he signed it he must have served it. He stated that he filed a daily report in the sheriff's office. The defendant testified that in 1949 he owned four drug stores; that he did not receive a summons from the deputy sheriff on April 21, 1949, at 6800 West Roosevelt road, Oak Park, Illinois; that the prescription records kept in the different stores indicated he was at 6756 Cermak road, Berwyn, Illinois, and was not present at the other address. The pharmacist employed by the defendant stated that he was managing and conducting the defendant's drug store at 6800 West Roosevelt road, Oak Park, Illinois, on April 21, 1949; that no summons was served on him, and that Mr. Tuma was not in the store at this address on that date. He based this on the fact that the prescription records showed that he was the only one who compounded prescriptions on that date. After the conclusion of the hearing the trial court said, Thereafter he entered an order setting aside the judgment and allowed defendant to file his appearance and plead or answer to the complaint.
On June 5, 1952, plaintiff filed a motion and a petition to vacate the order of May 9, 1952, and defendant filed his answer. At a hearing, plaintiff called the deputy sheriff who had testified at the prior hearing. He stated that when service of process was effected he always made out a daily report. He identified this report which was a record of all processes served by him on April 21, 1949. The report disclosed a notation in his handwriting that the defendant was served personally at Cermak road and Oak Park avenue, Berwyn, Illinois; that Oak Park avenue is 6800 west...
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Charles Austin, Ltd. v. A-1 Food Servs., Inc.
...Neither decision on which Forever Green relies, Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350 (1952), and Schnable v. Tuma, 351 Ill.App. 486, 115 N.E.2d 574 (1953), warrants a contrary result. In Ellman, the supreme court vacated a default judgment on the basis of the court's equitable ......
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... ... DeRuiter, supra, are Admiral Corporation v. Newell, 1952, 348 Ill.App. 180, 108 N.E.2d 521, and Schnable v. Tuma, 1953, 351 Ill.App. 486, 115 N.E.2d 574. The net effect of those decisions was to carry out in differing factual situations the holding of ... ...
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