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Lichter v. Scher

SEPTEMBER 25, 1956.

FRANK LICHTER, LYDIA FLORES, A MINOR, BY MANUEL FLORES, GUARDIAN OF HER ESTATE, APPELLEES,

v.

PHIL SCHER, AND MORRIS PETCHERSKY, D.B.A. P.M. LIQUOR STORE, JACK SPOT INN, INC., AND LEONARD A. BAUER, D.B.A. BETTER VALUE LIQUOR STORE, DEFENDANTS. JACK SPOT INN, INC., APPELLANT.



Appeal from the Superior Court of Cook county; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Judgment reversed and cause remanded with directions, unless remittitur is entered or stipulation is made within 30 days, as before stated.

JUDGE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order denying the petition of Jack Spot Inn, Inc., a corporation, hereinafter called the defendant, to set aside an order of default and to vacate a judgment for $25,000. While Frank Lichter still appears as a plaintiff in the title of the case, an order was entered September 14, 1951, dismissing the cause as to him and leaving Lydia Flores the sole plaintiff. The complaint filed July 19, 1948 charged that defendant in violation of the Dram Shop Act caused the intoxication in whole or in part of Nancy Lichter, mother of Lydia Flores, as a result of which Nancy Lichter died. Summons issued and was returned August 24, 1948, with an endorsement by the Deputy Sheriff that he had served the writ on "Jack Spot Inn, Inc., a corporation, by leaving a copy thereof with H.S. Wakefield, an agent of said corporation this 20th day of July, 1948." No appearance or answer was filed by Jack Spot Inn, Inc. and on December 6, 1951 notice was given to the attorneys of record for the other defendants that it was contemplated that a default judgment, order or decree would be entered December 13, 1951, at 2 o'clock P.M. A sworn certificate of the Clerk of the superior court was attached, certifying that the notice was mailed December 6, 1951. On December 13, 1951 an order of default was entered and a jury was waived for the purpose of prove-up on the default. Thereupon, the court heard the evidence, assessed damages at $25,000 and entered judgment.

On September 16, 1953, defendant, which had changed its name to Johnny Mitchell's Incorporated, filed its petition to vacate and set aside the default and judgment. In support of its petition defendant presented the affidavit of Wakefield, denying that he was ever served with summons. Plaintiff moved to strike the petition and the court allowed the motion. An appeal was thereupon taken, and in Lichter v. Scher, 4 Ill. App.2d 37, 123 N.E.2d 161, this court reversed the order and remanded the cause for hearing on the issue of service. Upon remandment the trial court heard the evidence on the issue of service, as well as argument on the other points made by Jack Spot Inn, Inc. The court decided against defendant and entered the order and judgment in question. Some of the points made by defendant are highly technical but we have given them all careful consideration. In a case in which default has been entered and there has been no trial on the merits, the judgment itself is based on the technique of procedure and is subject to careful scrutiny. We will consider first the factual issue of service on defendant.

The deputy sheriff testified that he entered the tavern in the afternoon of the day of service, that no one was there except a man behind the bar who gave his name as H.S. Wakefield, that he gave Wakefield the writ and made return thereof. Wakefield testified that he never received the summons, that he always held himself out as "Jim" and never used the name "Horace" nor the initials "H.S." in the tavern. While in his affidavit and in portions of his testimony he denied that he received the summons, on cross-examination he was not so sure. It is argued that Wakefield was not the proper agent to receive service. So far as appears from the record this corporation operated but one tavern. As we have said, it had changed its name from Jack Spot Inn, Inc. to Johnny Mitchell's, Inc. Its president was known as Harvey Murray, as Johnny Mitchell, and sometimes as Johnny Michael. He never appeared in the case. The agent named for service of process was Sidney Bernberg, secretary-treasurer, who was not a full-time employee. He was an auditor who appears to have done work for the corporation only occasionally. His residence address was listed in the telephone book, but his office address was not listed. Wakefield, according to the testimony of the deputy sheriff, which the trial court accepted as worthy of belief, was the only employee in the place at the time he entered. Wakefield mixed and sold drinks — the main, if not the only, business of the corporation — and at the time in question he was in charge. Indeed, he seems to have had a more substantial contact with the business than the officers of the company. The evidence supports the finding of the chancellor.

After judgment had been rendered an order was entered by the court January 28, 1952, granting leave to amend the complaint and other pleadings, orders and judgments by inserting the words "also known as Johnny Mitchell's Incorporated, a corporation," after the words "Jack Spot Inn, Inc., a corporation," and amendments were made accordingly. This order was entered upon certification by the attorney for plaintiff that notice had been given to the attorneys of record for the other defendants and that a notice had been mailed to Sidney Bernberg, secretary-treasurer of the defendant. It is the contention of Jack Spot Inn, Inc. that this amendment vacated the judgment which had been entered; that thirty days having expired, there could be no change in the judgment except as to form and then only pursuant to some note, memorandum or memorial remaining in the files or records of the court. The amendment neither added to nor detracted from the validity of the judgment. It was merely a further description of the defendant. If we assume that the court had no power to make the amendment, the judgment against Jack Spot Inn, Inc. still is not invalid because of the attempt. We will comment on some of the cases cited by defendant.

In Cowen v. Harding Hotel Co., 329 Ill. App. 239, 67 N.E.2d 707, the court held that summons shown as returned the day before suit was brought constituted an invalid service. In Oppenheim & Strauss v. Mower, 193 Ill. App. 48, a judgment was changed from one against a corporation to a judgment against a copartnership. The court considered this a change in substance. In Odell v. Levy, 307 Ill. 277, 138 N.E. 608, a supplemental bill seeking to make additional parties to a decree of foreclosure was held to have had the effect of rendering the previous order taking the decree pro confesso inoperative. It appears that the supplemental bill deprived the additional parties of their substantive rights. The distinction between the foregoing cases and the instant case is apparent.

Clark v. Augustine, 342 Ill. App. 296, 96 N.E.2d 582, is cited by defendant for the proposition that a judgment cannot be amended after thirty days even as to form unless such amendment was pursuant to some note or memorandum in the files or records of the court. Defendant contends that there was no such note or memorandum in the instant case. The order of default recites that Jack Spot Inn, Inc. was also known as Johnny Mitchell's, Inc., a corporation. This was a sufficient note or memorandum to satisfy the requirements of the Clark case.

Defendant contends that plaintiff's waiver of a jury and the court's hearing and assessment of damages pursuant thereto operated to vacate the default and hence the judgment was invalid. Article VII, Sec. 71, of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 195] provides as follows:

"(Assessment of damages by court). In all actions in the courts of record in this State upon default, when the damages are to be assessed, it shall be lawful for the court to hear the evidence and assess the damages without a jury for that purpose."

In this case, the defendant was in default for want of appearance after service, and it was proper for the court to hear the evidence and to assess the damages. In Cowen v. Harding Hotel Co., 329 Ill. App. 239, 67 N.E.2d 707, cited by defendant, there is language to the contrary. There, the plaintiff sued the Harding Hotel Company, a corporation, and the Harding Hotel Management Corporation, a corporation. The sheriff made a return showing that he served the hotel company by leaving a copy of the summons with A.J. Sinkula, its office manager and agent, and that he also served the management company by leaving a copy of the summons with A.J. Sinkula. The hotel company entered its appearance and filed an answer. The management company, however, defaulted. Without notice to the hotel company, default was taken against the management company. A jury was waived by the plaintiff, damages were assessed by the court, and a judgment entered against the management company. The court held that the plaintiff could not withdraw its demand for a jury as to the management company without notice to the hotel company. In this respect it differs from the instant case, in which other defendants whose appearance had been entered were notified. In Palmer v. Harris, 98 Ill. 507, a defaulted defendant sought to have a judgment set aside on the ground that he had the right to have the damages assessed by a jury. Pursuant to the statute then in effect, the damages had been computed by the clerk and judgment entered thereon. The statute contained a proviso that either party could have the damages assessed by a jury. The court held, however, that where the defendant was in default for want of appearance, he could not after judgment have it set aside in order that a jury might assess the damages. The court said, p. 510:

"In our opinion, the court is under no obligation to keep a case open for a non-appearing defendant any length of time. If he is in court, it is his duty to be present when the case is reached in its order upon the docket and called for trial, and then make known any wish he may have in regard to the mode of assessing damages, precisely as it is his duty to be present at or before that time and interpose any defence he may have to the action."

In McNulty v. White, 248 Ill. App. 572, after the term in which a default judgment was rendered had gone by, the defendant moved to set aside the judgment on the ground that other parties defendant had been dismissed without notice to the attorneys for the movant. A rule of the circuit court required notice of assessment of damages. The court held that a defaulted defendant was not entitled to such notice.

Defendant in the instant case contends that the judgment is void because at the time of the entry thereof the Dram Shop Act limited recovery to $15,000. This limitation was imposed by the amendment of August 10, 1949. At the time the cause of action arose, March 10, 1948, and at the time of the commencement of suit, July 19, 1948, there was no limitation on the amount of such damages. It is defendant's contention that the limitation is retroactive. It bases this theory on the proposition that the Dram Shop Act is purely a statutory creation and its continued existence or modification dependent on legislative enactment. Therefore, the legislature had the right to make such modification or abolition retroactive. The language of the Act and the purpose thereof, it is contended, reveal that the legislature intended to make the limitation retroactive.

Since the recent adoption of amendments relating to damages in both death and dramshop actions and limiting the time within which such actions may be brought, the law bearing on the retroactive effect of these statutes has been considered in a group of cases in the Supreme and Appellate Courts. Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513, affirming Orlicki v. McCarthy, 2 Ill. App.2d 182, 119 N.E.2d 1; Fourt v. DeLazzer, 348 Ill. App. 191, 108 N.E.2d 599; Steiskal v. Straus, 3 Ill. App.2d 479; Theodosis v. Keeshin Motor Exp. Co., Inc., 341 Ill. App. 8, 92 N.E.2d 794. In Orlicki v. McCarthy, supra, the question arose whether the amendment of 1949, which limited to two years the time within which a dramshop action could be brought, was retroactive and could be applied to a cause of action which arose prior to the time of the amendment. The Supreme Court recognized the general principle that legislation should be prospective in character, that this principle has long been incorporated into American ...


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