APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
A. NAPOLITANO and the Hon. FRANKLIN I. KRAL, Judges, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Defendant Leakas (hereinafter "defendant"), appeals from an order of default against him, from a decree of demolition entered with respect to a building owned by him, and from the denial of his motion to quash service of summons upon him and to vacate the Decree of Demolition.
He raises five issues on appeal:
(1) Service by publication is not available in an action for the demolition of a building;
(2) Service by publication was jurisdictionally insufficient as the proceeding was "in personam," not "in rem";
(3) The affidavit upon which the service by publication was based is false;
(4) Errors on the face of the record invalidate the demolition decree; and
(5) There was no evidence to warrant the entry of a demolition decree.
On August 27, 1968, a complaint was filed by the City against the four named defendants, alleging that the building located at 1422 W. Adams (rear) was in a dangerous condition and a menace to public safety in that it was maintained in violation of certain sections of both the Municipal Code of Chicago and the Illinois statutes.
After summons was returned "Not Found," the Corporation Counsel, on November 8, 1968, filed an Affidavit for Publication, and notice of the pendency of the action was published in the law Bulletin on November 11, 18, and 25, 1968. A copy of the published notice was mailed by the Clerk to defendant at 1422 W. Adams, but was returned by the Post Office, stamped "Moved, left no address." While no default order was entered against defendant until January 7, 1969, the court, without notice, entered a Decree for Demolition on December 17, 1968, in which it also retained jurisdiction to ascertain the costs of demolition and to enter a money judgment therefor against defendant. The decree also authorized the City to attach a lien against the premises for the costs of demolition. While the decree recites that the court heard evidence, the Report of Proceedings discloses that there was no testimony, but a mere colloquy between the Corporation Counsel and an unnamed Building Inspector in which the latter stated that as of December 12, 1968, the premises in question were vacant and locked, with the building in poor condition, with rotted mortar joints, missing gutters and down-spouts, broken sash doors, frames and window panes, that "the percentage of depreciation was only 9% risen to approximately 15%"; and that it was "going to be" dangerous and hazardous. The building was demolished in May, 1969.
Defendant filed a special appearance on May 13, 1969, to challenge the jurisdiction of the court on the grounds that service by publication was inadequate to confer jurisdiction on the court either because of the "in personam" nature of the action, or because the demolition statute (Ill. Rev. Stat. 1969, ch. 24, par. 11-31-1), does not specifically provide for service by publication, or because the affidavit upon which such service was based was false. On July 25, 1969, defendant filed a Motion to Quash Service of Summons and Vacate Judgment Order. An evidentiary hearing was conducted at the conclusion of which the motion was "denied in whole." The court found that it had acquired "in rem" jurisdiction over the property through service by publication. The order contained no finding of an "in personam" jurisdiction over defendant, but by denial of defendant's motion in its entirety, we must presume that the court found proper personal jurisdiction over defendant, or it would not have let stand the parts of the decree relating to costs, which could have been based only upon jurisdiction over defendant's person. Defendant now appeals.
At the hearing on the motion to vacate, a deputy sheriff testified that on August 30, 1968, in the course of his duties, he had a summons to be served upon defendant, and he drove to 1422 W. Adams, the address for service noted on the face of the summons. As was his custom in such cases, he just pulled up without getting out of his car, looked at the building, and "vaguely remembered" that the doors of the premises were boarded up. He did not remember going up to the building and knocking on the door, nor making any effort to determine whether anyone was on the premises. He did not notice if there were any padlocks on the doors, and from his car he saw no signs on the building or on the lot. He did not remember whether the building was the one on the front of the lot or the one in the rear. He "just looked at it from a distance," stayed a few seconds to make his notes, and "took off." He was never in the building at all, but "just wrote it was empty." When he returned to the office, he made out a report that defendant was "Not Found," and the building empty. He did not mail a copy of the summons to defendant.
Defendant testified at the hearing on his motion to vacate, and by way of affidavit in support of the motion, that he had bought the property in question, a two-story brick building at 1422 W. Adams (rear) in 1959 for $15,000, and that it had an appraised market value of $25,000 on September 4, 1968. The building had two-story steel beams and a cement floor with no partitions on either the first or second floors, leaving only open space. The premises were rented out to tenants for storage purposes. In 1968, one tenant, Reliance Elevator, occupied the entire building for the storage of its cables and beams. Under the leasing agreement, the tenant was to pay a monthly rental and provide for the maintenance of the doors and windows only. The tenant did not have his name on the doors of the building, and did not receive mail at that address.
When Reliance Elevator moved out in May, 1968, defendant, himself, used the premises as a workshop, spending four days a week there to repair furniture. Defendant had a sign on the rear door of the building at 1422 W. Adams about 15 feet above ground level and a sign about four feet high in the front lot of 1422 W. Adams, both of which stated his name and the telephone number and address of the building. These signs had been posted on the premises since spring, 1968, to aid in the possible sale or rental of the property. During the months of August and September, 1968, when the signs were still posted and defendant was working on the premises, defendant saw no one from the Chicago Building Department and never received any notice from them with reference to non-compliance with the Building Code. He did not live in the building at 1422 W. Adams and did not receive ...