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HALE v. MORGAN PACKING CO.

June 22, 1950

HALE
v.
MORGAN PACKING CO. ET AL. RENN V. MORGAN PACKING CO. ET AL.



The opinion of the court was delivered by: Platt, District Judge.

These are suits brought under the Wrongful Death Act, Chap. 70, Secs. 1 and 2, Ill. Rev. St. 1949. The death of the plaintiff's intestate in each case arises from the use and operation of a motor vehicle over the highways of the State of Illinois on March 15, 1949. The complaints were filed in the Circuit Court of White County February 4, 1950 and removed to this court.

(1) The affidavit of service does not allege that the defendants and each of them were nonresidents at the time of the occurrence in question;

(2) That the defendant Morgan Packing Company, a corporation, was not the owner or operator of the alleged truck allegedly being operated or driven by James Donald Green at the time of the occurrence mentioned, and that said corporation was incorporated on August 1, 1949 and was not in existence prior to that time; that therefore said Para. 23, Chap. 95 1/2 could not apply to said Morgan Packing Company, a corporation;

(3) That the plaintiff failed to pay $2.00 for service on each defendant;

(4) That no return receipt was ever filed by plaintiff in this action showing or purporting to show any service or attempted service of notice of the attempted service of process upon the Secretary of State of the State of Illinois;

(5) That the affidavit does not show that the occurrence in question arose out of the use of an automobile, as provided in said Sec. 23, Chap. 95 1/2;

(6) That said affidavit of service of summons aforesaid is defective and insufficient in that it fails to state or set forth the alleged copy or copy of summons issued in this cause and notice or notices required to be sent by plaintiff to said defendants.

Plaintiff filed a motion on April 7, 1950 for leave to amend the affidavit of service of summons and attached thereto the amended proof of service. This amended proof of service corrects the objections raised by the defendants and each of them with the exception of the payment of the $2.00 for each defendant, and also does not specifically allege that the Morgan Packing Company was a corporation in existence at the time of the collision on March 15, 1949 so that it might be served by summons, under said Sec. 23, Chap. 95 1/2, Ill. Rev. Stat. 1949. The said Sec. 23 requires that a fee of $2.00 be paid to the Secretary of State. "Strict compliance" is required in Illinois for constructive service of this kind. Rompza v. Lucas, 337 Ill. App. 106, at page 113, 85 N.E.2d 467. The Secretary of State is the recipient of the $2.00 under the statute, and even though the statute must be complied with strictly it does not seem that the defendant who has been served could raise the objection as to whether the $2.00 fee was paid.

In objecting to amending the affidavit of service defendants have cited Rompza v. Lucas, 337 Ill. App. 106, 85 N.E.2d 467. This case holds that the affidavit must strictly comply with said Sec. 23, Chap. 95 1/2 but does not hold that the proof of service or the affidavit may not be amended. Rule 4(h), Federal Rules of Civil Procedure, 28 U.S.C.A. expressly provides as follows: "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued." The defendants have shown no material prejudice to any substantial right by the amendment of the affidavit of service. The federal courts have permitted such amendment. Burdick v. Powell Bros. Truck Lines, Inc., D.C., 1 F.R.D. at page 220.

Furthermore, the affidavit in this case being merely the proof of service and not the actual service as provided for in the Illinois statute would not affect the validity of the service. Rule 4(g), Federal Rules of Civil Procedure, 28 U.S.C.A. "Return. * * * Failure to make proof of service does not affect validity of the service." People v. Ramspacher, D.C., 29 F. Supp. 632.

We therefore come to the conclusion that so far as this Court is concerned the service on the defendant James Donald Green with the amended affidavit is sufficient.

The defendants and each of them have objected to this upon the ground that the substitution of said partners in place of Morgan Packing Company, a corporation, is a new and entirely different cause of action from that suit in the original complaint and comes after the one year provision for time to commence a cause of action under Sec. 2 of the Injuries Act of Illinois, Chap. 70 of the Ill. Rev. Statutes. Sections 1 and 2 of Chapter 70, Ill. Rev. St. 1949, was in derogation of the common law. At common law no action survived. This continued action is a ...


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