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Mordecia v. Michicich

DECEMBER 30, 1963.




Appeal from the Municipal Court of Chicago; the Hon. NORMAN N. EIGER, Judge, presiding. Order reversed and cause remanded with directions.

MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT: Plaintiffs William T. Mordecia, Irene Beukema, and Mary Mordecia appeal from an order of the Municipal Court vacating three judgments in their favor against Anthony Michicich, one of the defendants.

Plaintiffs had brought suit to recover damages sustained on February 17, 1961, when they ate allegedly contaminated food at Adriatic Restaurant, owned by Anthony Michicich and his wife Anna Michicich. The statement of claim was filed on May 5, 1961, and subsequently a summons and three alias summons were issued and placed with the bailiff of the Municipal Court for service. In each instance the summons and aliases were returned "not found" by a deputy bailiff.

On December 6, 1961, counsel for plaintiffs appeared in the Municipal Court and moved for the appointment of a special deputy for the service of summons. Floyd Crouch, a deputy sheriff employed by the sheriff of Cook County, was appointed. His return, under oath, on the face of the summons, showed personal service of summons and statement of claim on Anthony and Anna Michicich, January 4, 1962, in their restaurant, 1752 West 63rd Street, Chicago, Illinois.

No appearance or answer was filed on behalf of defendants, and on April 12, 1962, default judgments were entered against Anthony Michicich and in favor of William T. Mordecia in the amount of $2,500, and in favor of Irene Beukema and Mary Mordecia in the amount of $1,000 each, making an aggregate sum of $4,500.

On June 21, 1962, a petition was filed on behalf of Anthony Michicich (signed and verified by his wife), setting forth alleged non-service of summons and a meritorious defense to the statement of claim. At the hearing to vacate the judgments, Anthony Michicich did not appear or testify in person nor did he offer any deposition. On June 29, 1962, the trial judge quashed service of summons and vacated the judgments of April 12, 1962. Plaintiffs appeal, and request that the order of June 29, 1962 vacating the three judgments be reversed and that the original default judgments be restored.

The law is well settled in Illinois that in order to overcome a sheriff's return of summons, it is incumbent upon the person allegedly served to produce clear and convincing evidence that he was not served. We so held in Pyle v. Groth, 15 Ill. App.2d 361, 366, 146 N.E.2d 219 (1957), saying:

"The rule is well settled in this State that the sheriff's return on a summons is prima facie proof of service and can be overcome only by clear and convincing proof. [Citations omitted.] . . . Where the legality of the acts of a public officer are brought collaterally into question, he will be presumed to have done his duty. Hogue v. Corbit, 156 Ill. 540. `"A sound public policy, the security of litigants and the stability of legal proceedings demand that the return of the sworn officer shall not be set aside or impeached except upon satisfactory evidence. . . ." Kochman v. O'Neill, 202 Ill. 110.' . . ."

To the same effect are Stasel v. American Home Security Corp., 362 Ill. 350, 199 N.E. 798 (1936), and Mandel v. Jackman, 16 Ill. App.2d 478, 148 N.E.2d 825 (1958). The rationale of these decisions is aptly stated in the early case of Davis v. Dresback, 81 Ill. 393 (1876).

But defendants argue that the special deputy who served process in this case was a private person with no official duty, without the sanction of an official oath, and without bond, and who was hired by plaintiffs.

After the deputy bailiff of the Municipal Court had made four successive efforts to obtain service on defendants and failed, plaintiffs moved the Municipal Court "to appoint a special deputy for the service of summons in this case, Floyd Crouch." No formal order was entered on this motion, but the half sheet in the Municipal Court clerk's office shows the following notation: "MOTION PLAINTIFF FLOYD CROUCH APPOINTED SPECIAL DEPUTY TO MAKE SERVICE OF PROCESS." Crouch, who had thus been specially deputized to serve process on defendants, was and had been a deputy sheriff of Cook County for the past eleven years. His duties were to serve summons, writs, and the like, and his qualifications are not questioned.

With respect to the problem here at issue the Civil Practice Act provides as follows (Ill Rev Stats 1961, c 110, § 13.1):

"13.1 § 13.1 Persons authorized to serve writs — Place of service — Failure to make return. (1) Writs shall be served by a sheriff, or if he is disqualified, by a coroner of some county of the State. The court may, in its discretion upon motion, order service to be made by a private person over 21 years of age and not a party to the action. It is not necessary that service be made by a sheriff or coroner of the county in which service is made. If served or sought to be served by a sheriff or coroner, he shall endorse his return thereon, and if by a private person the return shall be by affidavit.

"(2) Summons may be served upon the defendants wherever they may be found in the State, by any person authorized to serve writs. An officer may serve writs of summons in his official capacity outside his county, but fees for mileage outside the county of the officer cannot be taxed as costs. The person serving the writ in a foreign county may make return by mail.

"(3) If any sheriff, coroner, or other person to whom any process is delivered, neglects or refuses to make return of the same, the plaintiff may petition the court to enter a rule requiring the sheriff, coroner, or other person, to make return of the process on a day to be fixed by the court, or to show cause on that day why he should not be attached for contempt of the court. The plaintiff shall thereupon cause a written notice of the rule to be served on the sheriff, coroner, or other person. If good and sufficient cause be not shown to excuse the officer or other person, the court shall ...

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