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Alsobrook v. Cote

JUNE 2, 1971.

GEORGE J. ALSOBROOK, PLAINTIFF-APPELLANT,

v.

MARGARET M. COTE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The sole issue presented in this appeal is whether the uncontroverted affidavits submitted by the plaintiff, George Alsobrook, show that he exercised reasonable diligence to obtain service of process upon the defendant, Margaret Cote.

The plaintiff was injured in an automobile accident which occurred on December 19, 1963. He filed this action on December 16, 1965, three days before the statute of limitations was about to run on his cause of action. Summons was taken out directing the Sheriff of Cook County to serve the defendant at 1806 North Mobile, Chicago, Illinois, but this summons was returned "not found." Approximately two and one-half years later, on June 25, 1968, an alias summons was issued directing the Sheriff to serve the defendant at 3510 North Paulina, Chicago. The defendant was served and promptly moved to dismiss the action on the ground that the plaintiff had failed to use due diligence in obtaining service upon her. In the motion she stated that she had no file available concerning the accident and that it would be impossible for her at that time to marshal evidence to present an adequate defense.

Plaintiff, by his attorney, filed an affidavit in opposition to the motion to dismiss on December 15, 1968. Plaintiff's counsel stated therein that he had been diligent in his efforts to serve summons on the defendant and that he had sought to locate her (1) through correspondence with the Secretary of State, Vehicle Registration Division, (2) through correspondence with the County Clerk, Marriage License Division, and (3) by inspection of the Chicago area telephone directories for the years 1966, 1967, and 1968. This affidavit was struck by order of Court, but leave was granted to file other affidavits and/or documents.

On March 17, 1969, the plaintiff filed an amended affidavit, two additional affidavits, and two exhibits. These affidavits and exhibits in combination indicate that the following steps were taken to locate and serve summons upon the defendant:

(1) On December 16, 1965, plaintiff's attorney directed the Sheriff to serve the original summons upon the defendant at her address as indicated in the December, 1963, police accident report; but the summons was returned "not found;"

(2) In March, 1966, a member of the law firm representing the plaintiff visited the address indicated in the police report, found that the defendant's name did not appear on any mailbox, and was advised that she had moved to an unknown address;

(3) On July 1, 1966, a letter was sent to the Secretary of State, Auto Registration Division, concerning the defendant's address and any license plates issued to her, but the Secretary of State had no 1965 or 1966 registration for her car;

(4) On August 1, 1966, a letter was sent to the County Clerk, Marriage License Division, to determine whether the defendant had changed her name by marriage, but the County Clerk had no record of a marriage involving the defendant;

(5) In 1966 through 1968, a law clerk for the firm representing the plaintiff examined the Chicago area telephone directories.

Plaintiff's efforts were fruitless until June, 1968, when the law clerk found the defendant's address in the Chicago telephone directory and an alias summons was served.

The trial judge, after considering the affidavits and exhibits submitted, and after hearing arguments, found that the plaintiff had not made a showing of reasonable diligence, and dismissed the action.

Supreme Court Rule 103 (b) (Ill. Rev. Stat. 1967, ch. 110A, par. 103 (b)), provides:

"Dismissal for lack of Diligence. If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed with or without prejudice on the ...


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