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Robinwoods West, Inc. v. Kramer

AUGUST 5, 1970.

ROBINWOODS WEST, INC., A CORPORATION, PLAINTIFF-APPELLANT,

v.

ARNOLD I. KRAMER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. RICHARD A. HAREWOOD, Judge, presiding. Judgment affirmed.

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

Plaintiff appeals from an order quashing service of summons and vacating a prior judgment against defendant. An appeal is also taken from an order denying plaintiff's motion for a rehearing of the motion to quash.

On March 29, 1968, plaintiff instituted an action at law against defendant to recover damages for conversion of funds and breach of contract. *fn1 A summons was issued and directed to the law office of defendant. A deputy sheriff of Cook County made a return reflecting that service of summons was personally made on defendant.

On June 27, 1968, plaintiff secured a default judgment against defendant upon his failure to respond to the summons. The judgment was in the amount of $10,125, malice was found to be the gist of the action and the order further provided that an execution and a capias ad satisfaciendum be issued.

On January 31, 1969, defendant was taken into custody on the capias and released the same day upon the posting of the requisite bond. On February 24, 1969, defendant appeared specially and moved to quash the service of summons. At this time the original summons was lost and defendant was unable to determine the date he allegedly had been personally served, so defendant executed and filed an affidavit which recited that neither he nor any member of his family had been served with a summons in the instant litigation. The matter was set for a hearing on March 19, 1969, on which date it was continued to April 8, 1969, and then to April 15, 1969, when the hearing took place.

On April 15, 1969, defendant appeared pro se and filed an additional affidavit wherein it was recited that plaintiff's counsel had furnished him with a copy of a "restored" summons on March 24, 1969, indicating service was personally made on defendant on April 1, 1968. This affidavit further stated that the "purported service was false and a physical impossibility inasmuch as he was in the State of California from the period of March 30th, thru April 2, 1968." Defendant initiated the hearing by making a statement and alluding to his two affidavits and offered into evidence, in support of the two affidavits, a paid motel bill (Exhibit "A"). This exhibit was offered into evidence without any objection by plaintiff. Although there appears to be no specific ruling on the admission of Exhibit "A", both parties and the trial judge regarded it as having been admitted. Plaintiff did argue its sufficiency but not its admissibility. The exhibit reflected that the Ramada Inn, at Brawley, California, rented Room 104 to an Arnold Kramer of 19 S. LaSalle St., Chicago, Illinois, on March 30, 31 and April 1, 1968, and that $28.09 was paid on April 2, 1968.

Plaintiff's counsel then said that he presumed the foregoing was all the evidence defendant desired to present and if so, it was insufficient to overcome the return of the deputy sheriff, because it was uncorroborated and was not clear and convincing.

At this juncture, defendant was given leave to address the court and proceeded to argue his evidence and its sufficiency. The proceedings were very informal. Plaintiff's counsel then argued that Exhibit "A" was not corroborative of the affidavits and further that the paid bill had not been authenticated and "was totally improper." A colloquy ensued between the court and both counsel regarding the sufficiency of defendant's evidence. The court then ruled that the summons be quashed.

Plaintiff relies upon the following two contentions in urging this court to reverse the trial court's judgment:

(1) the evidence was insufficient to impeach the return of the sheriff and

(2) plaintiff was deprived of an opportunity to respond to defendant's evidence.

In support of his first contention plaintiff cites Marnik v. Cusack, 317 Ill. 362, 364, 148 N.E. 42 wherein the court said:

"The stability of judicial proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence."

Plaintiff also cites Pyle v. Groth, 15 Ill. App.2d 361 (1957) wherein it was held that a sheriff's return on a summons is prima facie proof of service and can be ...


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