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
(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
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
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 ...