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Harris v. American Legion Post No. 838

MAY 21, 1973.

WILLIAM HARRIS ET AL., PLAINTIFFS-APPELLEES,

v.

AMERICAN LEGION JOHN T. SHELTON POST NO. 838, DEFENDANT-APPELLANT — (THOMAS BOYD, DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

This is an appeal by an American Legion Post from the denial of its motion to quash the sheriff's return purporting to show service of summons upon it and to vacate and set aside a default judgment of $9,000 based thereon.

The suit sought recovery from the Post and one Thomas Boyd and alleged that plaintiff was seriously injured when Boyd, intoxicated as the result of liquor purchased at the Post, struck Harris on the head with a beer bottle.

The return of the sheriff's deputy certified that on April 7, 1970, he served the summons on:

"the within named American Legion, a corporation, by leaving a copy with John T. Shelton, an agent/officer of said corporation."

The defendant Boyd was never served.

On May 3, 1971, said Post was defaulted and on June 9, 1971, a judgment for $9,000 was entered in favor of William Harris and against the defendant "John Shelton American Legion Post No. 838."

On January 21, 1972, the defendant filed a special appearance and moved to quash the purported service and to vacate and set aside the judgment. On that day the motion was denied. A subsequent motion for rehearing was heard and denied on February 22, 1972, and the instant appeal is from both orders.

Affidavits in support of said motion show that John H. Shelton was a United States Army soldier who was killed in the trenches in Europe during World War I; that the John H. Shelton American Legion Post No. 838 received its charter in February of 1940 from the National Headquarters of the American Legion; and that on April 7, 1970 (the date the deputy's return shows service upon John T. Shelton), there was no one named John H. Shelton, John T. Shelton, John Shelton, or any name similar, affiliated with said Post as agent/officer, employee or member. The plaintiff filed no counter affidavits and the deputy who made the return did not appear or testify.

The affidavit of the Post's Commander also states that he first received notice of the instant law suit and ex parte judgment on or about December 10, 1971, when an execution was delivered to John Brown, the Post's bartender. It does appear that the trial judge mailed postcards to the Post notifying it of the default and of the entry of the ex parte judgment and that plaintiffs' attorney, in August of 1971, wrote a letter to the Post advising it of the June 10, 1971, judgment.

The plaintiff cites, Mordecia v. Michicich, 45 Ill. App.2d 238, 195 N.E.2d 441; Hines v. Smith, 29 Ill. App.2d 35, 172 N.E.2d 429; Pyle v. Groth, 15 Ill. App.2d 361, 146 N.E.2d 219; and Marnick v. Cusack, 317 Ill. 362, 148 N.E. 42; for the sound legal proposition that where a natural person challenges a return by a sheriff's deputy stating that he served the defendant in person such a return is "prima facie proof of service and can be overcome only by clear and convincing proof", and "should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served." It should be noted that these cases related only to attacks by natural persons against returns reflecting service upon them personally. The fifth case cited by plaintiff (Cannata v. White Owl Express, Inc., 339 Ill. App. 79, 89 N.E.2d 56) involved the service of a summons upon a corporation by serving its driver but the defendant corporation conceded that he was its agent and challenged the return only on (unsound) ground that a copy of the summons was not subsequently mailed to the corporation.

• 1 When, however, the deputy's return recites that he served an individual defendant, not by serving him in person, but by serving a member of his family at his usual place of abode, or where he recites that he served a corporate defendant by serving a certain person as its agent, no such presumption arises and, where such a return is challenged by affidavit and there are no counteraffidavits, the return itself is not even evidence, and, absent testimony by the deputy, the affidavits must be taken as true and the purported service of summons quashed.

In 62 Am.Jur.2d, Process, sec. 179, at page 959, it is said:

"§ 179. As to collateral facts and facts not within knowledge of officer.

The rule that the officer's return of process is conclusive as to parties and privies does not apply to statements or recitals of facts or ...


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