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Aetna Casualty & Surety Co. v. Sanders

OCTOBER 19, 1973.

AETNA CASUALTY & SURETY CO., PLAINTIFF-APPELLANT,

v.

CLARA SANDERS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH J. HERMES, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE SECOND OPINION*FN1 OF THE COURT: *FN1 AFTER THIS MATTER WAS ARGUED FULLY HERE, AN EARLIER OPINION WAS FILED DISMISSING THE APPEAL. SUBSEQUENTLY, BY ORDER OF THE TRIAL COURT, THE RECORD WAS CORRECTED AND WE GRANTED LEAVE TO USE THE BRIEFS AND ABSTRACTS ALREADY ON FILE AND WILL RECONSIDER THE APPEAL.

Plaintiff appeals from an order vacating an ex parte judgment against defendant.

Involved here is a subrogation suit filed on June 25, 1971 wherein the sheriff's return shows personal service of summons on defendant on July 8, 1971. Defendant failed to appear or otherwise respond to the summons and on August 23, 1971 an ex parte judgment in the amount of $2,500 was entered against her. Plaintiff mailed notice of this judgment to the Secretary of State who notified defendant, by letter dated September 24, 1971, of the judgment pending against her. On October 19, 1971 defendant filed a petition for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72), alleging that:

1. she was never personally served with summons,

2. she had no knowledge of the lawsuit until she received the letter from the Secretary of State, and

3. she had a meritorious and legal defense in that she was not responsible for the injuries to plaintiff's subrogor.

On January 13, 1972 an order was entered which (1) upheld the service of summons, and (2) vacated the ex parte judgment entered against defendant. From that order plaintiff appeals contending that the section 72 petition and supporting affidavit were insufficient because they failed (1) to allege a meritorious defense, and (2) to show diligence.

OPINION

I

• 1, 2 Plaintiff first contends that defendant was properly served with summons and, initially, we observe that a section 72 petition is a proper method of questioning a sheriff's return. (Cox v. General Motors Corp., 132 Ill. App.2d 209, 267 N.E.2d 513.) It is settled that a sheriff's return on a summons is prima facie proof of a proper service which can only be overcome by clear and convincing proof. (Robinwoods West, Inc. v. Kramer, 128 Ill. App.2d 49, 262 N.E.2d 332.) and that we are required to indulge every presumption in favor of the sheriff's return. Pyle v. Groth, 15 Ill. App.2d 361, 146 N.E.2d 219.

Defendant, in the petition and in her supporting affidavit, alleges that she was never personally served with process. In her petition she states "summons was returned as personally served * * * Defendant was not personally served."' In the affidavit she states "at no time was I personally served with summons indicating the commencement of the above suit." She made no other allegation, by petition or affidavit in support of this contention, and the record discloses no corroboration of her statement that she was not personally served.

Defendant contends that the sheriff's return was rebutted by her affidavit of non-service. In effect, she argues that, in the face of the bare return unsupported by the testimony of the Sheriff or other witnesses, the trial court should have found that her affidavit constituted clear and convincing proof sufficient to rebut the return. She relies on two cases, Isaacs v. Shoreland Hotel, 40 Ill. App.2d 108, 188 N.E.2d 776 and Schnable v. Tuma, 351 Ill. App. 486, 115 N.E.2d 574. In Isaacs, the affidavit and testimony of the sheriff stated he left the summons with an unidentified female employee in the hotel auditor's office to be delivered to the auditor who, supported by the testimony of the female employees of his office, denied receipt of the summons. The sheriff testified the employee did not give her name and he put the name of "Miss Reed" on his return because that was the auditor's name. It was held that the return was rebutted by clear and convincing evidence. In Schnable, the deputy sheriff could not remember personally serving defendant who denied he was in his store on the date of service allegedly made there and his pharmacist also testified defendant was not in the store that day and they were the only persons who worked in the store. The court held this to be clear and convincing evidence which rebutted the return.

• 3, 4 In Marnik v. Cusack, 317 Ill. 362, 364, 148 N.E. 43, it was 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 ...


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