APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN and the Hon. BENJAMIN NELSON, Judges, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 20, 1973.
An action to recover damages was brought by plaintiff-appellee (hereinafter "plaintiff") in the circuit court of Cook County against defendant-assured (hereinafter "O'Hara") of garnishee-defendant Prestige Casualty Company (hereinafter "Prestige"); the basis for the action below was O'Hara's alleged negligence in the operation of a motor vehicle, which resulted in injuries to plaintiff arising out of an automobile accident on November 2, 1963.
Service of summons was had upon the Illinois Secretary of State pursuant to the Illinois Non-Resident Motorist Act. (Ill. Rev. Stat. 1967, ch. 95 1/2, par. 9-301, now, par. 10-301.) In May, 1969, plaintiff apprised Prestige of the pendency of the suit against O'Hara, and immediately thereafter Prestige learned that service of process had been accomplished via the section of the Illinois Non-Resident Motorist Act above-cited. A default judgment against O'Hara was entered by the court on February 24, 1970, and on April 15, 1970, an affidavit of garnishment, based upon said judgment, was filed by plaintiff as part of a garnishment action against Prestige.
Prestige answered "no funds" to the garnishment interrogatories filed on April 28, 1970, and, after a hearing, a garnishment judgment order in the amount of $10,000, plus interest and costs, was entered against Prestige on January 14, 1971.
Thereafter, Prestige and its attorneys presented to the court various petitions, in their own behalf and in behalf of O'Hara, which sought to vacate the underlying judgment, and said petitions were denied.
Subsequently, Prestige and its attorneys brought this appeal.
The principal issues presented for review are: first, whether the trial court had jurisdiction over the person of defendant O'Hara by virtue of service of process on the Illinois Secretary of State under the Illinois Non-Resident Motorist Act; and, second, whether the trial court's finding that Prestige did not prove O'Hara's non-cooperation, and its own diligence in eliciting O'Hara's cooperation, is against the manifest weight of the evidence.
With respect to the first issue, Prestige contends that the allowance of service of process on the Illinois Secretary of State in non-resident motorist cases is "a sham practiced upon the courts," because all the subject Act requires, in Prestige's view, are mere assertions in an affidavit that a defendant is a non-resident and that a defendant's last known address was an Illinois address; further, Prestige urges, the Act does not require proof that a defendant received notice of a pending suit, and thus a defendant is deprived of the proper service of process made a necessity by his right to know that a claim is being made against him.
Plaintiff, on the other hand, simply states, in essence, that all requirements set forth in the Act were met by plaintiff in the case at bar, and, consequently, jurisdiction over the person of defendant O'Hara was accomplished.
To place the proceedings below in perspective, at the time of entry of the judgment against O'Hara on February 24, 1970, the court had before it the affidavit of compliance, drawn by plaintiff's attorney and required by the Act, which stated: "3. On information and belief, defendant was a resident of this State but subsequently became a non-resident of this State. Defendant's last known address is 5712 N. Winthrop, Chicago, Illinois." The affidavit of compliance had been admitted into evidence without objection. The court, in rendering the judgment against O'Hara, recited that the defendant had been "* * * served with summons by service upon the Secretary of State as in the Statute made and provided * * *" and "* * * this Court having jurisdiction of the parties * * * and being fully advised in the premises * * *."
• 1 The constitutionality of "substituted service of process" was determined by the United States Supreme Court in the case of Hess v. Pawlowski (1927), 274 U.S. 352, 71 L.Ed. 1091, 47 S.Ct. 632, and, in Illinois, our Supreme Court had occasion to discuss substituted service and specifically the statute which is the subject of this case in Ogdon v. Gianakos (1953), 415 Ill. 591, 114 N.E.2d 686. Regarding the power to be exercised under the provisions of the Act, the Illinois Supreme Court, following the rationale set down in Hess, stated, at page 597:
"The appointment by the legislature of the Secretary of State as an agent of a defendant for service of process in suits arising from the defendant's operation of a motor vehicle upon the highways of the State has been held a valid exercise of the police power based upon the right of the State to regulate the use of its highways for ...