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County of Lake v. X-po Security Police Serv.

APRIL 24, 1975.

THE COUNTY OF LAKE, PLAINTIFF-APPELLANT,

v.

X-PO SECURITY POLICE SERVICE, INC. ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. HENRY H. CALDWELL, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

On May 24, 1973 a complaint was filed by the State's attorney of Lake County entitled:

"PEOPLE OF THE STATE OF ILLINOIS, Ex Rel JACK HOOGASIAN, State's Attorney in and for the County of Lake, State of Illinois, and the COUNTY OF LAKE, State of Illinois, a body corporate and politic

Plaintiffs vs.

X-PO SECURITY POLICE SERVICE, INC., a domestic corporation; CHARLES M. FLETCHER, DOROTHY J. FLETCHER, JOHN DOE, ONE to TEN Defendants"

The original complaint has not been furnished this court; however, a memorandum of the trial judge filed on the 19th of July, 1973, and signed by the trial judge in which he states that the complaint should be dismissed for want of equity, has been furnished this court. It would appear that the original complaint was not, in fact, dismissed by the trial court.

Nonetheless, on August 8, 1973, after due notice, the State's attorney of Lake County filed an amended complaint entitled:

"COUNTY OF LAKE, STATE OF ILLINOIS, a Body Corporate and Politic,

Plaintiff vs.

X-PO SECURITY POLICE SERVICE, INC., a domestic corporation; CHARLES M. FLETCHER, DOROTHY J. FLETCHER, JOHN DOE, ONE to TEN, Defendants"

The motion of the defendants to strike and dismiss the amended complaint was filed on August 24, 1973, and on September 17, 1973, the trial court, stating that it had heard the arguments of counsel, ordered that the amended complaint be stricken and dismissed for want of equity. No transcript of the hearing thereon has been furnished this court. The plaintiff, the County of Lake, through the State's attorney, appeals.

The amended complaint is in two counts. The first count states in substance that X-PO Security Police Service, Inc., Charles M. Fletcher, Dorothy J. Fletcher and John Doe One to Ten were serving civil process in the County of Lake from January, 1973, and for an unknown period prior to January, 1973, without authority and have been collecting fees for the service of process. The complaint further states that all the defendants except X-PO are deputy sheriffs of Lake County and that they are without authority to serve process in any capacity except that of deputy sheriff. The complaint further states that the defendants have been retaining the fees for their own use and benefit and that the fees for the service of process are the property of the County of Lake. Plaintiff further states that the fees collected are being held by defendants as trustees of a constructive trust for the benefit of the County of Lake. Plaintiff further states that the injuries suffered by the County of Lake cannot be adequately redressed in an action of law; that the fees constitute the subject matter of a constructive trust; that the defendants are accountable to the plaintiff for the subject matter of the constructive trust and that the County of Lake cannot be adequately redressed unless an injunction is issued enjoining the defendants from further retaining fees collected for service of process.

The second count of the complaint states that the service of civil process by the defendant corporation, X-PO, is ultra vires and in support thereof has attached a copy of the Articles of Incorporation of the X-PO company. The second exhibit attached to the amended complaint is a letter of solicitation from the "X-PO Security Police Service, Inc." in which the defendant states the following:

"Sir:

Following are seven reasons why you should use X-Po Security Service, Inc., when you have any ...


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