Tomaszewski v. George, Gen. No. 46045

Citation116 N.E.2d 88,1 Ill.App.2d 22
Decision Date02 December 1953
Docket NumberGen. No. 46045
PartiesTOMASZEWSKI v. GEORGE.
CourtUnited States Appellate Court of Illinois

Ader & Ader, Chicago, Morris K. Levinson, Chicago, of counsel, for appellant.

Harvey K. Cousens, Chicago, for appellee.

LEWE, Justice.

Plaintiff brought an action to recover damages alleged to have been caused by defendant's wanton and malicious alienation from plaintiff of his wife's affections.

Defendant having been defaulted for failure to file an appearance or answer, the cause was submitted to a jury on June 20, 1952, which found that malice was the gist of the action and assessed plaintiff's damages at $5,000. Judgment was entered accordingly on the same day.

August 20, 1952 defendant filed his verified petition, supported by three affidavits, signed by defendant's wife and two other persons praying that service of summons be quashed and that the default judgment be vacated. After a hearing on the petition the relief prayed for was granted. Plaintiff appeals.

As grounds for quashing the service of summons, the petition alleged that (a) the deputy sheriff who filed the return purporting to serve defendant by leaving a copy of the summons with his wife on May 1, 1952 did not inform her of the contents thereof as provided by chapter 110, section 137, paragraph 13 of the Illinois Revised Statutes of 1949; (b) that the service of summons had upon defendant's wife was not at defendant's usual place of abode as required by statute; (c) that the person serving the summons did not identify himself as an officer of the law; and (d) that defendant never received a copy of the summons in the United States mail.

At the hearing one Sarli, a deputy sheriff, was asked to tell how he served Martha George, defendant's wife. He replied, 'I drove up to this address and parked my car ten or fifteen feet away from there. I walked toward the address that I was looking for. As I was walking up to the place Mrs. George came over. She thought at first that I was a contractor. She was expecting a contractor. This is the story she told me, that she was getting her steps fixed. I asked for her husband but he was not in, so I served her. I told her I had a summons for her husband, that she could accept it, and she accepted it.' The witness also testified that he did not tell Mrs. George 'the contents of the summons'; that at the time he delivered the summons to Mrs. George she was talking to 'two or three other women there on the sidewalk about ten or fifteen feet away from her residence.'

The sheriff's return signed by Sarli, his deputy, states that a copy of the summons was mailed on 'the first day of May 1952 in a sealed envelope with postage prepaid addressed to defendant at his usual place of abode.'

The record discloses that the following question was propounded to Sarli: 'Do you recall whether you sent Mr. Sam George a copy of the summons in an addressed envelope to him at that address properly postmarked with the proper postage?' The witness answered: 'As far as I can remember I do not believe I sent him a copy.'

The petition alleges inter alia that the first notice defendant received of the judgment entered against him was when his wife was served with a writ of execution on or about August 8, 1952; that defendant never received a copy of the summons in the United States mail, and that defendant and his wife cannot read or write the English language.

From a careful reading of the petition we think it alleges facts which constitute a good and meritorious defense to the alienation suit.

Plaintiff contends that the sheriff's return may not be impeached after lapse of the term at which the judgment was entered.

In Nikola v. Campus Towers Apartment Bldg. Corp., 303 Ill.App. 516, 25 N.E.2d 582, plaintiff filed an action to recover damages for personal injuries and a default judgment was entered against defendant. After term time defendant filed a verified petition averring that defendant was never served with summons. In that case plaintiff contended that a judgment cannot be vacated in the same proceeding after thirty days from the entry thereof except under the provisions of section 72 of the Civil Practice Act. After tracing the use of the writ of error coram nobis in this State,...

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10 cases
  • State Bank of Lake Zurich v. Thill
    • United States
    • Supreme Court of Illinois
    • September 17, 1986
    ......Lemberis (1960), 28 Ill.App.2d 164, 171, 171 N.E.2d 81; Tomaszewski v. George (1953), 1 Ill.App.2d 22, 27, 116 N.E.2d 88.) Therefore, where ......
  • Mid-America Federal Sav. and Loan Ass'n v. Kosiewicz, MID-AMERICA
    • United States
    • United States Appellate Court of Illinois
    • May 23, 1988
    ...... (Cf. Tomaszewski v. George (1953), 1 Ill.App.2d 22, 27, 116 N.E.2d 88 (deputy did not think ......
  • Podgorny v. Great Central Ins. Co., 3--673A64
    • United States
    • Court of Appeals of Indiana
    • May 30, 1974
    ...... In Tomaszewski v. George (1953), 1 Ill.App.2d 22, 116 N.E.2d 88, the defendant attacked a ......
  • Taylor v. Landsman, 3-1280A395
    • United States
    • Court of Appeals of Indiana
    • June 30, 1981
    ......Lemberis (1960), 28 Ill.App.2d 164, 171, 171 N.E.2d 81, 85; Tomaszewski v. George (1953), 1 Ill.App.2d 22, 27, 116 N.E.2d 88, 90. Strict ......
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