Appeal from the Superior Court of Cook county; the Hon. GEORGE
M. FISHER, Judge, presiding. Reversed and remanded.
JUDGE LEWE DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 28, 1956.
Defendants appeal from an order denying their motion to set aside a default decree entered in a strict foreclosure proceeding. They appealed directly to the Supreme Court which transferred the cause to this court. (7 Ill.2d 206.)
A special appearance was filed by defendants challenging the jurisdiction of the court over defendants on the ground that plaintiff did not meet the requirements of the statutes relating to service by publication. The issues formed by defendants' motion were determined by the trial court on the pleadings and the facts as alleged in affidavits attached thereto.
Defendants' major contention is that plaintiff's counsel failed to comply with the provisions of sections 14 and 29 of the Civil Practice Act [Ill. Rev. Stats. 1955, ch. 110, §§ 14, 29] which require "due" and "diligent" inquiry be made to ascertain the residence of defendant Peter S. Lambros, deceased, the names of his heirs and their residences.
The essential facts as alleged in defendants' affidavits are these. April 5, 1947, Peter S. Lambros, the owner of the property involved in the foreclosure proceeding, died intestate. At the time of his death, he resided at 1440 West Jarvis Avenue, in the City of Chicago, Illinois, as shown in the files of the Bureau of Vital Statistics in the Office of the County Clerk of Cook County at 130 North Wells Street, Chicago. He was survived by his wife Ariadne P. Lambros and four children.
At the time of the death of Peter S. Lambros and on October 16, 1952, when the complaint was filed in the foreclosure suit, Ariadne P. Lambros, the wife of the deceased, also resided at 1440 West Jarvis Avenue, Chicago. All of the children of the deceased were nonresidents of Illinois, except S. Peter Lambros who resided at 5432 West Ferdinand Street, Chicago. The estate of the deceased was not probated.
Ariadne P. Lambros was named in the complaint as a party defendant, but the children of the deceased were made parties as "Unknown Owners." Simultaneously with the filing of the complaint, plaintiff's attorney filed an affidavit of non-residence of the Lambros' and "unknown owners" defendants who allegedly on due inquiry could not be found so that process could not be served on any of them; that upon a diligent inquiry their places of residence could not be ascertained; and that the last known places of residence of Peter S. Lambros and Ariadne Lambros, his wife, was 130 North Wells Street, Chicago.
Plaintiff also filed an affidavit of "unknown owners" asserting among other things that Peter S. Lambros and Ariadne Lambros and "unknown owners," if living, were interested in the action or claimed to have some right, title or interest or lien in, or to some part of the property which was being foreclosed; that it was unknown to plaintiff or his attorney if the named defendants be living or dead; and that the names of such persons who might be their heirs or devisees were also unknown to plaintiff and to plaintiff's attorney after due and diligent search having been made; and that all such persons were therefore made parties defendant to this cause by the name and description of "unknown owners."
October 22, 1952, the clerk of the court filed his certificate of mailing of notices to Peter S. and Ariadne Lambros at 130 North Wells Street. October 24, the returned envelopes were filed by him bearing a notation that the addressees were not at that address.
October 27, "Directions to Sheriff" were filed by plaintiff's counsel directing service on Peter S. Lambros and Ariadne Lambros at 130 North Wells Street. The sheriff's return shows Peter S. Lambros was not found at the last known address. Attached to the summons was a note stating he was "deceased." The sheriff's return on Ariadne Lambros was also marked "not there."
November 1, 1952, a certificate of publication as to Peter S. and Ariadne Lambros, unknown owners, et al. was filed, and an order of default was entered November 28, 1952. Subsequently, the cause was heard on the complaint and "the sworn testimony of Ned Langer, attorney for an agent of plaintiff, proofs and exhibits received therein." February 9, 1953, the decree here sought to be set aside was entered and the master in chancery ordered to execute a deed to plaintiff unless redemption was made in 90 days. No redemption having been made, the property in question was conveyed to plaintiff. Later, plaintiff conveyed it to a third person who plaintiff alleges was a bona fide purchaser for value.
The trial court found that the plaintiff's affidavits were not false, as alleged by defendants, and that the service by publication was in accord with the statute.
Several suggestions in the affidavits attached to defendants' motion indicate the means by which plaintiff's attorney could have ascertained all the facts with respect to the residence of Peter S. Lambros, ...