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Sunga v. Lee

FEBRUARY 19, 1957.

PAUL SUNGA, APPELLEE,

v.

JASON LEE ET AL., DEFENDANTS. APPEAL OF ARTHUR SONG, AND JESSIE SONG, APPELLANTS.



Appeal from the Circuit Court of Cook county; the Hon. THOMAS J. COURTNEY, Judge, presiding. Judgment reversed and cause remanded with directions.

PRESIDING JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 12, 1957.

Defendants Arthur Song and Jessie Song appeal from a $9,000 default judgment entered against them, and from the orders of the trial court denying their motions to vacate said judgment.

Plaintiff brought an action to recover damages for personal injuries resulting from an alleged dogbite. Defendants Arthur and Jessie Song are nonresident owners of the premises where the alleged injuries occurred. Jason Lee, owner of said dog, was made a co-defendant. Thomas Masuda, listed as the one who paid the taxes on the premises, was subsequently made an additional party defendant. After filing the suit, plaintiff, without notice to the other defendants, sued out a writ of attachment against Arthur and Jessie Song, residents of Honolulu, Hawaii. Personal service was not had upon the Songs, but publication and mailing of the summons was made as required in Ill. Rev. Stat. 1955, chap. 11, par. 22. The summons, which was mailed to them, was merely addressed Honolulu, Hawaii, without any street or house number and as a result was not received by them. It was returned by the United States Post Office to the clerk of the Circuit Court marked "not found." On January 31, 1955, defendants Arthur and Jessie Song were defaulted, and the court, without a jury, entered judgment against them in the sum of $9,000 on February 4, 1955.

On May 17, 1955, attorneys for the Songs appeared specially to file a motion to vacate the judgment and quash the summons. The only ground for said motion was that the plaintiff did not make a diligent inquiry to ascertain the place of residence of Arthur and Jessie Song, as stated in the affidavit for attachment. There was a hearing on the motion, and on June 30, 1955, the trial court entered an order overruling and denying defendants' motion and directing the sheriff to proceed with the sale of defendants' property.

On July 6, 1955, defendants filed a motion for leave to file an appearance, leave to file an answer to the complaint at law, and to vacate the judgment, setting forth again that plaintiff did not make diligent inquiry as to the residence of defendants, and further alleging that defendants acted diligently and had a meritorious defense. These motions were also heard by the trial court, and on September 27, 1955, a final order was entered overruling and denying defendants' motion to vacate the judgment, and for leave to file an appearance and answer. (Defendants Jason Lee and Thomas Masuda were dismissed from the case by order of court entered July 13, 1955.)

On this appeal defendants assign six grounds for reversal, only one of which was specified in the trial court. This court on numerous occasions has held that an issue not raised in the trial court cannot for the first time be raised on appeal unless such issue goes to the jurisdiction. Haugan v. Michalopoulos, 280 Ill. App. 239.

We will consider two contentions. First, that the attachment affidavit was void because it was vague and uncertain as to whether the Songs were being sued as defendants or as garnishees and thus the court had no jurisdiction over the subject matter, and second, that plaintiff did not exercise due diligence as required by section 2 of the Attachment Act to ascertain the place of residence of the defendants. This was a default judgment and there has been no trial on the merits and therefore the judgment is based on the technique of procedure and is subject to careful scrutiny. Lichter v. Scher, 11 Ill. App.2d 441.

[3-5] As to the first contention, it is true that an attachment affidavit must meet all the essential requirements of the statute to give the court jurisdiction over the subject matter. If an essential element of the affidavit is omitted, it may not be aided by amendment, and the proceeding is without authority of law. Martin v. Schillo, 389 Ill. 607. Such question relates to jurisdiction and may be raised for the first time on appeal. Jarrett v. Jarrett, 415 Ill. 126. The statute requires that such affidavit contain the following elements: (1) the nature and amount of the claim; (2) one or more of the statutory causes for which attachment may issue; (3) "the place of residence of the defendants, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same"; (4) a statement to the effect "that the attachment action invoked by such affidavit does or does not sound in tort"; and (5) "a designation of the return day for the summons to be issued in said action." Ill. Rev. Stat. 1955, chap. 11, par. 2.

The defect complained of relates to language creating an inconsistency by way of surplusage. The statute does not require that the word "defendants" or "garnishees" appear in the affidavit. While both these words appear in this affidavit, we do not feel that this defect substantially affects the affidavit's conformity to the statutory requirements. Since all the jurisdictional elements appear in the affidavit, the defect complained of does not render the affidavit void or the court without jurisdiction. While such defect may render the affidavit voidable or subject to amendment, it does not relate to the court's jurisdiction over the subject matter, and thus cannot be raised for the first time on appeal. Erickson v. Gregory, 275 Ill. App. 286.

Defendants' second contention is that plaintiff did not exercise due diligence, as required by section 2 of the Attachment Act, to ascertain the place of residence of the defendants. That section provides that the affidavit shall state "the place of residence of the defendants, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same." The attachment affidavit made by attorney for the plaintiff recites:

"And affiant further says: That the said Arthur Song and Jessie Song, are not (a) residents of this State, and that their place of residence is as follows, to-wit: City and County of Honolulu, in Territory of Hawaii: (1) That upon diligent inquiry, affiant has not been able to ascertain their exact place of residence; . . ."

Defendants argue that plaintiff's attorney could have discovered their exact address by making inquiry of their agent, Thomas Masuda, or by looking in the telephone directory of Honolulu, Hawaii; that in failing to take these steps plaintiff's attorney clearly did not conduct a diligent inquiry; and that the recitation of "diligent inquiry" in the affidavit is therefore not substantiated by the record, and the affidavit is void.

In the early case of Haywood v. Collins, 60 Ill. 328, our Supreme Court in discussing the action of ...


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