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Jordan v. Savage

AUGUST 18, 1967.

IDA JORDAN, PLAINTIFF-APPELLEE,

v.

PEARL SAVAGE, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, First Municipal District; the Hon. JOHN OUSKA, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Plaintiff brought this action to recover damages for injuries sustained in a fall down a stairway as she left her apartment in a building located at 2920 South Wentworth Avenue, Chicago. Summons was returned showing service on defendants Steve and Pearl Savage and on their son-in-law, defendant John Simack, by serving John Simack, Jr., grandson of the Savages and son of John Simack, at the latter's home located at 506 West 32nd Street, Chicago. Soon after this service defendant Simack filed his answer to the complaint. Thereafter, the court granted plaintiff's request to increase the ad damnum from $10,000 to $50,000. Approximately sixteen months after the complaint had been filed, defendants Steve and Pearl Savage entered a special and limited appearance questioning the jurisdiction of the court over their persons and moving to quash service of summons. Their motion was denied, and the Savages then entered a general appearance and filed an answer to the complaint in which they admitted owning the building at the Wentworth address on the date plaintiff was injured. The cause proceeded to trial before a jury which returned a verdict for plaintiff in the amount of $12,000, and judgment was entered on the verdict by the magistrate presiding. Defendants appeal the judgment on several grounds.

Defendants Steve and Pearl Savage contend that the judgment against them is void for want of jurisdiction, arguing that service of process against them was defective and their motion to quash such service should have been allowed. This contention is partially meritorious since it appears from the affidavit attached to their motion that the Savages, on the date summons was served, did not reside at 506 West 32nd Street, but, instead, were physically present in the State of Arizona where they had resided for about five years. Substituted service under these circumstances was clearly improper and denial of their motion to quash constituted error. Ill Rev Stats 1963, c 110, § 13.2(2). However, the Savages later appeared generally and filed an answer to plaintiff's complaint, thereby waiving the error in the court's ruling. The Civil Practice Act (Ill Rev Stats 1963, c 110, § 20 (3)) provides:

If the Court sustains the objection (to jurisdiction), an appropriate order shall be entered. Error in ruling against the defendant on the objection is waived by the defendant's taking part in further proceedings in the case, unless the objection is on the ground that the defendant is not amenable to process issued by a Court of this State.

The relevant question for determination, thus, is whether the Savages, though not amenable to the kind of service attempted, were amenable to some service of process issued by a court of this State. The Civil Practice Act clearly affords the requisite amenability when considered with reference to the allegations of plaintiff's complaint. It provides:

§ 17. Act submitting to jurisdiction — Process.

(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:

(c) The ownership, use, or possession of any real estate situated in this State;

Ill Rev Stats 1963, c 110, § 17(1)(c). *fn1

The answer filed by the Savages admitted ownership of the premises wherein plaintiff allegedly sustained her injuries, and at no time during the course of the trial was the fact of their ownership put in issue. Their motion to quash service of summons was aimed not at the amenability of the Savages to the jurisdiction of the court, but, rather, at the mode of substituted service used. Therefore, when they elected to litigate the merits of the case instead of standing on their motion, the jurisdictional point was waived. Ill Rev Stats 1963, c 110, § 20(3); Spencer v. American United Cab Ass'n, 59 Ill. App.2d 165, 170, 208 N.E.2d 118; O'Flaherty v. Osborn, 26 Ill. App.2d 152, 153, 167 N.E.2d 563.

The next contention, in which all defendants join, is that it was prejudicial error to require defendants to submit to a jury trial presided over by a magistrate in a case involving a claim for $50,000 in damages. It is true that at the times pertinent to this case the Assignments to Magistrates Act provided that civil proceedings were assignable to magistrates only when the claim for damages did not exceed $5,000. Ill Rev Stats 1963, c 37, § 622. That Act also provides, however:

All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to collateral attack merely because rendered pursuant to improper assignment to a magistrate. Ill Rev Stats 1963, c 37, § 628.

Defendants recognize that the above statutory language is controlling here, *fn2 but contend that their objection to the magistrate in the instant case was "made before the trial or hearing" began. The record shows that defendants raised their objection to assignment of the case to Magistrate Ouska after a panel of twelve veniremen had been called to the jury box, sworn for examination, and the first panel of four jurors selected. Defendants argue that all twelve jurors must first be sworn for trial before a jury trial can be said to have begun. While Hay v. Reed, 93 Ind. App. 592, 178 N.E. 873, an Indiana Appellate Court case, seems to support this proposition, we are far more persuaded by the decision in Wilhite v. Agbayani, 2 Ill. App.2d 29, 33, 118 N.E.2d 440, where the court stated:

In general it has been held that the trial begins when the jury are called into the box for examination as to their qualifications and that the calling of a jury is ...


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