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Bell Federal Sav. & Loan Ass'n v. Horton

OPINION FILED MAY 9, 1978.

BELL FEDERAL SAVINGS AND LOAN ASSOCIATION, PLAINTIFF-APPELLEE,

v.

HUBERT F. HORTON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of St. Clair County; the Hon. THOMAS P. O'DONNELL, Judge, presiding.

MR. JUSTICE WINELAND DELIVERED THE OPINION OF THE COURT:

FACTS:

Plaintiff-Appellee sought to foreclose a mortgage lien on certain real property owned by the defendants-appellants, Hubert F. Horton and Tangee S. Horton. The suit proceeded to a decree obtained by default since no pleading was filed by the defendants until after the decree for and sale of the foreclosed premises. The suit proceeded normally to a sheriff's sale at which plaintiff was the purchaser and to a deficiency judgment of $102.62 against the defendants. There is some question concerning the latter item, but the same does appear in the record as a valid judgment against the defendants.

Service of summons was not attempted in person but was by means of publication on the date of filing suit. Plaintiff through its attorney, Frank T. Plattner, filed at that time an affidavit stating inter alia that upon due inquiry, the defendants (naming them) cannot be found so that process cannot be served upon them, that upon diligent inquiry their last place of residence has been ascertained to be 416 North 56th Street, E. St. Louis, Illinois 62203. Said affidavit then proceeds in the usual and customary form to state that upon "due and diligent inquiry" it cannot be ascertained whether said defendants are living or dead, and if they or either of them be dead, they or their heirs or devisees cannot be ascertained, and they are all therefore made parties by the name and description of "unknown owners."

Following the due and regular publication there was a regular certificate of mailing by the clerk of the court, which was not questioned in any way by the defendants.

According to the court's order directing the sale, interest and installments on the loan secured by the real estate mortgage were apparently paid by defendants up to September 1, 1975.

Sale of the premises to plaintiff by the sheriff was confirmed by decree of the trial court entered December 16, 1976. Thereafter, on July 5, 1977, the defendants entered their special appearance, claiming under section 20 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 20) that the attempted service by publication herein was defective and void and asking that said judgment be vacated.

Proceedings in the case were stayed by order of court pending the outcome of this appeal. The record shows there were no intervening claimants nor persons claiming rights as innocent purchasers of the premises.

OPINION

The question now before this court is not whether the defendants-appellants might have had knowledge of the pendency of this suit to foreclose. Rather, the question is, was plaintiff justified in resorting to service by publication and mailing in the first place? The answer requires not only that we examine somewhat at length the record in this case, but likewise the functional and historical significance of service of process in this State.

In this case the trial record shows that plaintiff's attorney filed an affidavit stating upon "due inquiry" the defendants cannot be found and further stating the last place of their residence to be 416 North 56th Street, E. St. Louis, Illinois 62203 (the place sought to be foreclosed under the complaint). Said affidavit further on discloses that upon "due and diligent inquiry" affiant cannot ascertain whether or not said defendants are living or dead, and if dead, then the persons who happen to be the unknown heirs or devisees of such defendants are made defendants by name and description of "Unknown Owners."

• 1 According to the authorities which we have examined, most of which are reported herein, Illinois law contemplates that in order to resort to service by publication and mailing in that class of cases where permissible, there must be more than a cursory effort made by the plaintiff to locate the defendants. This is so that if possible service of process can be had in person. Otherwise, if properly challenged, an affidavit which attempts to show "due inquiry" or "due diligence" does not speak the whole truth and service by such substituted means may not be resorted to.

On July 5, 1977, or some seven months after the sale by the sheriff to the plaintiff, the defendants filed their special and limited appearance, supported by affidavit of one of the defendants. In this pleading defendants set forth in substance that the real property in question was purchased by them in 1971, and that the defendant husband and wife have "resided at said address continuously since the end of 1971." They further state that they have a meritorious defense to the foreclosure (without stating what it consisted of). They also raise the question in this pleading of whether "due inquiry" was in fact made by stating that plaintiff's attorney knew or on due inquiry should have known that defendants resided at 416 North 56th Street, and should have obtained personal service upon them, as required by statute (citing pertinent sections of the relevant statute).

The trial court at this point ordered the plaintiff-appellee following a hearing on this special and limited appearance to file a counteraffidavit. Plaintiff, without questioning the conclusory nature of the defendants-appellants' pleading, did so. In the counteraffidavit which plaintiff's attorney made and filed as attorney for the plaintiff, he stated that "prior to filing the foreclosure action he ordered a title report and report of possession, and received a title report which stated, `Property is vacant but ...


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