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Liepelt v. Baird





APPEAL from the Circuit Court of Lake County; the Hon. BERNARD M. DECKER, Judge, presiding.


Rehearing denied November 16, 1959.

This is an appeal from a decree entered in the circuit court of Lake County which vacated a prior money judgment and set aside a sheriff's deed obtained through an attachment sale of real estate in execution of such judgment.

A chronology of this litigation is necessary for a proper understanding of the case. On June 12, 1956, the plaintiff, Liepelt, filed his attachment bond, affidavits of attachment and non-residence, and obtained a writ of attachment on certain Lake County farm land owned by defendant, Arch Baird. On July 16, Liepelt filed a complaint against Baird for the price of certain feed, and sought service by publication. On August 1, 1956, a default judgment for $977.95 was entered against Baird. A sheriff's sale of the realty resulted in its purchase by Liepelt for $1,085.75 and deed was issued to him in December, 1957. In March, 1958, Baird filed a complaint against Liepelt seeking to vacate the original money judgment and to set aside the sheriff's deed, and in May, 1958, he sought the same relief by a petition filed in the original cause under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1957, chap. 110, par. 72.) The two cases were consolidated for trial and, after an all-day hearing before the court, a decree was entered vacating the money judgment, setting aside the sheriff's deed, and ordering an accounting of the amount due Liepelt. From this decree he appealed directly to this court, a freehold being involved.

Liepelt contends that the trial court erred in finding that he failed to make diligent search and inquiry to ascertain the place of residence of Baird before executing the affidavits of attachment and non-residence; that the sheriff's sale thereunder should have been sustained; and that Baird is not entitled to equitable relief because of the long delay in asserting his rights. Baird urges that the affidavits of attachment and non-residence were false, the sale thereunder void, and that he had no notice of the proceedings.

Liepelt's attachment affidavit set forth "that the said Arch Baird is not a resident of this state, and that upon diligent inquiry affiant has not been able to ascertain his place of residence so that process cannot be served upon him, has departed from this State, with the intention of having his effects removed from this State," and his affidavit of non-residence stated that Arch Baird "resides out of this State and on due inquiry cannot be found * * * that upon diligent inquiry his place of residence cannot be ascertained * * * that the last known place of residence of such defendant is 215 South Kildare Avenue, Chicago, Illinois, * * *."

The testimony taken at the hearing relative to the residence of Baird and his actual knowledge of the proceedings was in direct conflict.

Baird testified that for ten years he lived on the Lake Zurich farm which was the subject of this attachment proceeding; that he was a pharmacist at the Austin Drug & Truss Company, 5756 Chicago Avenue, in Chicago for seven years, and prior thereto he worked as a pharmacist in the loop store of Sears and Roebuck; that from 1955 through 1957 he operated and lived on the farm; and that he did some building there during 1956 and had telephone service. He further testified that in September, 1956, he received mail at the Lake Zurich address; that he usually slept at the farm during 1956, but spent some nights with his son at 215 South Kildare Avenue in Chicago, when he came into the city with produce; that he had not resided outside of Illinois for five years; that he had left the State only for the purpose of going to Clinton, Iowa, once each month; and that he had not been outside of Illinois for more than three consecutive days during the last five years.

Three witnesses, who were old friends of Baird, testified that they had worked part time for him on the farm during June, July and August of 1956, and that Baird then lived on the farm.

Liepelt testified that he went to Baird's farm "several times," and on "different occasions" to locate Baird, but found no signs of life; that he had not seen Baird on the farm since 1953; that he made two trips to the farm with his attorney after judgment was obtained, but no one was there; that he supplied Baird with feed from 1950 to 1953 and was requested to and did send statements to him at 215 South Kildare Avenue in Chicago; and that in October, 1952, he sent Baird a statement for $1,080, and in February, 1953, Baird personally paid $300 on the account by check. Liepelt further testified that Baird then said he had to go out of the State, but didn't know how long he would be away; that he saw Baird in the drug store on Chicago Avenue and also at the Kildare Avenue address and sent four statements to him at the latter address after February, 1953, none of which were returned; and that he had heard that Baird was living on the farm. He admitted that he did not know whether Baird had ever left the State in the last five years.

Liepelt's attorney testified that prior to filing suit in June, 1956, he wrote to Baird at the Kildare Avenue address, but not at the Lake Zurich farm; that he checked for phone listings in the name of Arch Baird but found none; and that he went to the farm with Liepelt the first two Sundays in June, 1956, and found no one there. However, Liepelt testified that he did not go to the farm with his attorney until after judgment. Neither Liepelt nor his attorney attempted to locate Baird at the drug store on Chicago Avenue.

While Baird denied that he knew of these proceedings, or received any notice pertaining thereto prior to February, 1958, both Liepelt and his attorney testified that in August, 1956, Baird approached them and offered to satisfy the judgment by giving his promissory notes and arranging for their discount at Liepelt's bank. Baird denied such conversation.

After examining all of the testimony and noting its inconsistencies, the trial judge found that on June 12, 1956, Baird was a resident of the State and was present so that personal service could have been had upon him; that plaintiff did not make diligent inquiry to ascertain Baird's residence; and that Liepelt should have known that the affidavits of attachment and non-residence were false. The court further found that Baird had no notice of the proceedings, and that the judgment against him was void.

We have carefully examined the record with respect to the affidavits of attachment and non-residence. An affidavit for attachment is insufficient if it does not set forth a statutory ground for the issuance of the writ. (Ill. Rev. Stat. 1957, chap. 11, par. 1; Gilbert v. Estate of Yunk, 214 Ill. 237.) In the case at bar, the affidavit sets forth but two grounds: first, that Baird was a nonresident of Illinois, and second, that he had departed the State with intention of having his effects removed ...

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