Appeal from the Circuit Court of Cook county; the Hon. THOMAS
E. KLUCZYNSKI, Judge, presiding. Affirmed in part, reversed in
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This is an appeal taken from an order of the Circuit Court of Cook County striking and dismissing defendant's petition to vacate an order which had been entered within thirty days by another judge of the same court and which denied defendant's motion to quash a capias ad satisfaciendum and void the return of service, in a suit which had been brought against him and on which judgment had been entered.
From the record before us it appears that on September 16, 1951 the plaintiff was struck by an automobile owned and driven by the defendant. On October 17, 1951 the plaintiff filed a suit and obtained service upon the defendant by serving the Secretary of State of Illinois in accordance with section 20a of the Illinois Motor Vehicle Act (Ill. Rev. Stat. 1951, ch. 95 1/2, par. 23). The attorney for the plaintiff filed an affidavit of compliance with the Clerk of the Circuit Court. The defendant was defaulted for failure to file an appearance. The case was heard as a default matter on March 28, 1952. The court found the defendant guilty and assessed plaintiff's damages in the sum of $10,000. The court also found that the defendant was guilty of wilful and wanton misconduct and made an express finding that malice was the gist of the action. On November 3, 1958 the defendant was taken in custody on a body execution dated October 30, 1958.
On November 3, 1958 defendant's attorney appeared before Judge Harry M. Fisher. On the same day Judge Fisher entered an order which, after reciting that a motion had been made by the attorney for the defendant to quash the capias and to find the substituted service in the case void, overruled said motion and ordered that the defendant be released from the custody of the Sheriff upon the filing of his own recognizance with his employer as security, and it was further ordered that the defendant appear pursuant to the requirements of the bond on December 3, 1958 and from day to day thereafter until discharged by the order of the court. On the same day a bond was executed and filed with the Clerk of the Circuit Court.
On November 25, 1958 the defendant filed a verified petition to vacate Judge Fisher's order. At that time Judge Fisher was dead. The plaintiff filed a motion to strike and dismiss the petition, setting up that the petition was insufficient in law, that after the expiration of five years from the entry of the judgment the court lacked jurisdiction to set aside the judgment of March 28, 1952, and that the decision rendered on November 3, 1958 was res judicata. The trial court heard arguments of counsel and on February 11, 1959, after stating that his order was that "the motion of the defendant will be overruled and denied," signed an order presented by the plaintiff sustaining the plaintiff's motion to strike and dismiss the petition, from which order this appeal is taken. The appeal was originally taken directly to the Supreme Court, and on motion by the plaintiff was transferred here.
In this court the defendant contends that the judgment for the plaintiff is void because at the time of the accident and at the time the complaint against him was filed he was a resident of Illinois, and hence attempted service through the Secretary of State was ineffective. He further contends that the capias issued for his arrest was void because the plaintiff did not in her complaint pray that a capias issue and did not allege that malice was the gist of the action. The defendant prays that the judgment rendered against him on March 28, 1952 be declared null and void, that the order of February 11, 1959 be reversed and set aside or that the court declare null and void that portion of the judgment of March 28, 1952 finding that malice was the gist of the action and authorizing the issuance of a capias, and that the trial court's order refusing to quash the capias should be set aside.
The plaintiff's theory is that the order of November 3, 1958 is res judicata as to the issues involved therein since no appeal was taken therefrom, that the defendant's petition to vacate the judgment having been filed more than five years after the entry of the judgment, it was properly denied in accordance with the statute, that the record shows that the complaint charged the defendant with "malicious" conduct, that the court made a special finding that "malice is the gist of the action," that the judgment recited that "malice is the gist of the action," and that therefore a body execution was properly issued.
The first question to be disposed of is as to whether or not the service made on the defendant under the provisions of the statute conferred jurisdiction on the court.
The order entered by Judge Fisher on November 3, 1958, since it provided for a further appearance of the defendant, was not a final and appealable order. The notice of appeal indicates that the appeal is being taken from the order of the court entered on February 11, 1959 striking and dismissing the defendant's petition to vacate the order of November 3, 1958. On this appeal we have before us both orders. Biagi v. O'Connor, 18 Ill.2d 238, 163 N.E.2d 461; Biagi v. Gregory, 19 Ill. App.2d 534, 154 N.E.2d 849.
Paragraph 23 of chapter 95 1/2 of the Illinois Revised Statutes, 1951, provided that service may be made upon the Secretary of State where a person is a nonresident of the State or where at the time the cause of action arose he was a resident of the State but subsequently became a nonresident.
It appears from the record that the defendant was a resident of Chicago, Illinois from 1924 to June, 1947; that he obtained employment in Baltimore, Maryland in 1947 and resided there until June, 1951, at which time he sold his furniture and household effects and shipped certain trunks and a tool case to an address in Chicago; that the defendant shortly thereafter drove his automobile to Chicago with his wife and child. In July, 1951 the defendant rented an apartment at 921 Eastwood Avenue, in Chicago, where he resided until September 25, 1951. On that date, nine days after the accident, the defendant moved out of the apartment and, with his wife and child, drove to the State of New York. He returned to Chicago on October 24, 1951, seven days after the suit was filed. He rented an apartment at 4278 North Hazel Avenue, in Chicago, and has resided there until the time that he was arrested under the capias. In the interim between the date of the accident and the time when the defendant went to New York he was contacted by an investigator employed by the attorney for the plaintiff. The defendant referred the investigator to his attorney.
It is the contention of the plaintiff that at the time of the accident or at the time the suit was started the defendant was a nonresident of the State of Illinois and hence the substituted service was valid.
The attorney for the defendant contends that on November 3, 1958, after the plaintiff had been arrested under the capias, he appeared before Judge Fisher solely to have the defendant released on bond in order to permit him to study the facts and law involved in the case, and that he did not make any motion to either quash the capias or find the substituted service in the case void. However, this court is bound by the recital in the order of Judge Fisher that such motions were made, and in the petition to vacate that order it is stated that the attorneys for the plaintiff and the defendant appeared, together with the defendant, and that the judge then inspected the Clerk's register and, after swearing in the defendant, the court took evidence from the defendant regarding his residence and thereupon entered the order. It is true, as contended by the defendant, that the motion of the plaintiff to strike defendant's petition to vacate the order admits all facts well pleaded therein, but such a motion does not admit conclusions alleged in the pleading. Schreiner v. City of Chicago, 406 Ill. 75, 92 N.E.2d 133; Wolcott v. Village of Lombard, 387 Ill. 621, 57 N.E.2d 351; 30 I.L.P. Pleading, sec. 188.
The statute in question deals with persons who are nonresidents of the State. No cases have been cited to the court where the term as used in the statute is defined. However, the Attorney General in 1952, in an opinion (No. 352), stated that where a statute such as the one here involved does not define the term "residence" then the term is to be given its general, customary and usual meaning, citing Husser v. Fouth, 386 Ill. 188, 53 N.E.2d 949, and Stiska v. City of Chicago, 405 Ill. 374, 90 N.E.2d 742. The opinion further states that the residence of a person depends upon his actions and intention, and that the intention is not necessarily determined from the statements or declarations of the party but may be inferred from his acts, ...