Appeal from the Municipal Court of Chicago; the Hon. DANIEL J.
McNAMARA, Judge, presiding, Reversed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. An action was brought in the Municipal Court of Chicago by Wilma Sanchez, hereafter referred to as the plaintiff, against Ella Randall, hereafter referred to as the defendant. The action demanded damages for injuries alleged to have been sustained on the premises of the defendant.
The suit was filed on October 16, 1959. The bailiff's return showed service on defendant Ella Randall at her usual place of abode by delivering a copy of the summons, together with a praecipe, statement of claim and affidavit, "to Mrs. W. Kellogg, housekeeper, a person of her family of the age of ten years or upwards and informing her of the contents thereof, in the City of Chicago, this 22 day of Oct. 1959 and also by sending through the United States Post Office, on the 23 day of Oct. 1959, a copy of the within writ in a sealed envelope, with postage fully prepaid, addressed to the said defendant at such usual place of abode." It is signed by William G. Milota, bailiff, by A.E. Fink, deputy.
A default was entered against the defendant for failure to appear on October 28, 1959, and the judgment order was entered on December 7, 1959, which judgment order recited that the court having heard evidence found for the plaintiff against the defendant and assessed the plaintiff's damages at the sum of $2,800. Judgment was entered accordingly.
The defendant filed a notice on the plaintiff that a motion to quash the summons and return and to vacate the default and judgment would be heard on March 4, 1960. The motion was based on the ground that the court had no jurisdiction of the defendant. In an attached affidavit of the defendant she states: "2. That she was never personally served with summons or complaint in the cause. 3. That no summons was ever given to her by a member of her family. 4. That she did not know of the default order being entered until receiving notice of an execution writ from the Bailiff of the Municipal Court." She further states that she used due diligence in acting to set aside the order and sets out a meritorious defense to the action. The motion was continued from time to time, and a hearing was held before the trial judge April 18, 1960. At that hearing the defendant testified that she had for six and one-half years lived at and owned the building commonly described as 1001 North Francisco Avenue; that she occupied a six-room apartment; that she managed the building, collected the rents etc. She stated that there are three bedrooms in her apartment and that she rented space to Mrs. Kellogg and Marie Lott who also lived there. She testified that the three bedrooms in the apartment were occupied, one by her, and the other two by Mrs. Kellogg and Marie Lott; that the three of them shared the kitchen; that both Mrs. Kellogg and Marie Lott had the use of the whole house; and that Mrs. Kellogg had lived in the apartment about a month before the time the summons was served. The defendant further stated that Mrs. Kellogg is not very well, not able to walk, and gets around in a wheel chair; that she cannot see well and was seventy-two years old; that Mrs. Kellogg was not related to her (the defendant) by blood or marriage; that Mrs. Kellogg was not the defendant's housekeeper or maid; and that Mrs. Kellogg did not give her the summons in this action. Defendant stated that she received a letter from the plaintiff's lawyer; that she sent her son to talk to the plaintiff; that he was told the case was going to be dropped; that the letter referred to had been received before January 1, 1960; and that thereupon she contacted her lawyer. She also testified that she, Mrs. Kellogg and Marie Lott all worked together; that they shared in cleaning the house and lived together as a unit, eating in the same kitchen. She stated that she was served sometime in January with an execution on the judgment.
The hearing was continued to April 22nd, when Arthur E. Fink, the deputy bailiff, testified that he served the summons on October 22, 1959 and that the return on the summons was made by him. He served it on Mrs. Kellogg, who was seated in a wheel chair. She opened the door and he gave her the summons, telling her he was a deputy bailiff. He asked for the defendant and Mrs. Kellogg told him that she was not in. He told Mrs. Kellogg that he was giving her the summons, stated that it is a summons, and told her that she should make sure and give it to defendant. Mrs. Kellogg gave the bailiff her name and he left.
The court told the attorney for the defendant that he must file an affidavit to conform to the proof, and he thereupon filed an affidavit made out by the defendant on May 6, 1960. In that affidavit she states, among other things: "2. That she was never personally served with summons or complaint in the cause. 3. That no summons was ever given to her by a member of her family. 4. That the woman who the Bailiff allegedly served was not a member of affiant's family. She had subleased a room in the apartment of the affiant for only four (4) weeks prior to the alleged date of service and was over 75 years old, infirm, confined to a wheel chair, and was senile." On May 6th a further hearing was held in the trial court, and the court entered an order vacating the default judgment and gave the defendant leave to file an appearance.
The plaintiff filed a motion for a rehearing in which she objected, among other things, to the second affidavit filed by defendant on the ground that it went beyond the evidence inasmuch as it stated that Mrs. Kellogg was senile, which was not supported by any evidence and is a mere conclusion of the affiant. On May 25th the trial court heard the motion for rehearing, and the trial court stated: "The court rules that she [Mrs. Kellogg] was not a member of the household and that the service was not proper." The court denied the motion for a rehearing. From the order of the court vacating the judgment this appeal is taken.
Section 13.2 of Rule 1 of the Municipal Court of Chicago is the same as Section 13.2 of the Civil Practice Act (Ill. Rev. Stat. 1959, chap. 110, par. 13.2), with reference to service of process on individuals. It provides that an individual may be served by leaving a copy of the summons at his usual place of abode with some person of the family of the age of ten years or upwards, and informing that person of the contents thereof, provided that the officer making service shall also send a copy of the summons to the defendant by mail. In the instant case the return of the officer indicates that the service was made in accordance with the rule.
The entire question in this case seems to be based upon whether or not Mrs. Kellogg could be considered a member of the family of the defendant.
Service of process at the defendant's usual place of abode has been held sufficient where the copy of the process was left with a maidservant of the defendant. Lewis v. West Side Trust & Sav. Bank, 286 Ill. App. 130, 2 N.E.2d 976. It has also been held that leaving a copy of the process with the defendant's sister at defendant's usual place of abode was sufficient even though the sister lived in an adjoining apartment in the same building. Anchor Finance Corp. v. Miller, 8 Ill. App.2d 326, 132 N.E.2d 81. In the latter case the admitted facts were that the copy of the summons was left with the sister and that the defendant received a copy from the sheriff by mail.
Liberty Nat. Bank v. Zimmerman, 333 Ill. App. 94, 77 N.E.2d 49, discusses the meaning of the word "family," and reaches the conclusion that a daughter, son-in-law and ten month old child who moved into the premises occupied by the defendant and his wife constituted part of the defendant's family. The court says (quoting from Policemen's Benev. Ass'n v. Hill, 257 Ill. App. 138):
"`The word "family" has been given a broad application. It is defined by Webster as "the collective body of persons who live in one house and under one head or manager." Servants have sometimes been held members of a family. Strawn v. Strawn, 53 Ill. 263. In Race v. Oldridge, 90 Ill. 250, it was held that a friend of the defendant who was a boarder was a member of the family. No definite number of persons is necessary to constitute a family, although there must be at least two persons, and it is not essential that the persons actually reside together in one house. 25 C.J. 665, 666. . ..
"`"it would seem to be reasonable, therefore, in such a case as the present, to consider the word `family' as meaning a collective body, consisting of two or more persons who live together, and between whom there are family relations of a domestic character." ...