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Capitani v. Miller





APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.


Rehearing denied March 19, 1979.

The defendant appeals from a default judgment rendered against him arising out of injuries sustained by the plaintiff when the defendant's automobile collided with the plaintiff's bicycle. The accident occurred in the City of North Chicago on July 29, 1976.

The defendant was a resident of Pennsylvania and left the State of Illinois immediately after the accident and before the complaint was filed. The plaintiff's attorney who had been informed that the defendant was insured by Travelers Insurance Company promptly notified the Rockford office of that company and the Travelers' Rockford office acknowledged notice of the accident on August 10, 1976. Following this up, the plaintiff's attorney sent a notice of attorney's lien to the Rockford office of Travelers on September 30, 1976, which Travelers also acknowledged. The defendant was not an individual insured of Travelers but at the time of the accident was driving a rental automobile of National Car Rental, which was insured by Travelers.

No action having been taken by Travelers toward settling the claim and the defendant being a resident of Pennsylvania and not within the jurisdiction of Illinois, the plaintiff on November 22, 1976, filed suit against the defendant and served the Secretary of State with summons as provided by section 10-301(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 10-301(b)). A copy of the complaint and summons and an affidavit of compliance with the statute as to service of process on the Secretary of State was included in a notice sent by registered mail to the defendant at his last known address, as required by statute. This was addressed to the defendant at 540 W. Mermaid Lane, Philadelphia, Pennsylvania, which is the address defendant indicated as his home address on the North Chicago traffic accident report. The plaintiff's attorney also notified Travelers Insurance Company in Rockford that he had filed suit against the defendant. The notice to Travelers indicated the case number and informed Travelers that he had served the Secretary of State with summons. The notice addressed to the defendant was postmarked January 6, 1977, and the Secretary of State acknowledged receipt of the summons and complaint as having been served on him on January 13, 1977.

The registered mail notice sent to the defendant was returned unopened with the notation thereon "Refused — not good at above address." Thereafter, nothing further was heard from either the defendant or Travelers. On April 13, 1977, no answer or appearance having been filed by the defendant, plaintiff moved for a default judgment. The trial court granted the motion for default judgment and on May 6, 1977, a jury, empaneled to determine damages only, awarded the plaintiff $25,000 in damages.

On July 5, 1977, the plaintiff's attorney notified Travelers of the default judgment and on July 13 their attorney moved to vacate the judgment based on section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) and thereafter filed a memorandum in support of said petition. The gist of the memorandum was that the defendant had never received the summons or notice of suit and was unaware of such suit until July 6, 1977, after the default judgment had been entered. In support of this contention the defendant filed an affidavit suggesting the existence of a meritorious defense and asserted due diligence after notice of the default judgment. Apparently this motion and supporting affidavit were filed on the basis of this being a section 72 petition to vacate the default judgment. After hearing the arguments of counsel, the trial court on October 19, 1977, denied the petition on the grounds that the defendant had failed to prove due diligence on his part.

On November 16, 1977, the defendant filed a motion for leave to file his petition under section 10-301(e) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 10-301(e)). In this motion the defendant stated that he was entitled to make his appearance within 1 year after receiving notice of the judgment because he was a nonresident defendant who had not received notice and a copy of the process by registered mail, as provided in the statute. In support of this contention the defendant submitted two further affidavits, one by himself and one by his father. The affidavit of the defendant stated that he was known as Walter P. Miller III, whereas his father was known as Walter P. Miller, Jr.; that the defendant had lived at 540 W. Mermaid Lane, Philadelphia, Pennsylvania, at the time of the accident in question (July 29, 1976), but at about September 1, 1976, he had moved to another address in Pennsylvania and that he was never served with a copy of the summons and complaint in the suit filed against him and that he never refused to accept such notice. He acknowledges that he was aware that a registered mail envelope came to his father's house sometime after January 1, 1977; however, he did not know that a suit had been filed against him.

The affidavit of Walter P. Miller, Jr., the defendant's father, stated that he recalled a registered mail letter being addressed to Walter P. Miller, which came to his address at 540 W. Mermaid Lane, but not knowing the sender of the letter he refused it, believing it was intended for someone else.

On this basis, the defendant argues that while his petition should have been granted under section 72 and it was an abuse of discretion for the trial court to deny it, in any event, the language of section 10-301(e) of the Illinois Vehicle Code clearly mandates his right to open the judgment regardless of any question of due diligence or meritorious defense because he had not, in fact, received notice and a copy of process, as the affidavit of his father revealed to have been the case.

Thus, there are two prongs to the defendant's argument — first, that the trial court abused its discretion in denying him relief under section 72 because he had a meritorious defense and had acted with due diligence in filing his petition and, second, that the language of section 10-301(e) of the Illinois Vehicle Code automatically requires the judgment to be opened in any case where the defendant did not, in fact, receive "notice and copy of the process by registered mail," and the defendant moves within 1 year of receiving notice of the judgment to open such judgment under section 10-301(e).

• 1 As to the defendant's contention to his section 72 motion, we do not regard the trial court's ruling as an abuse of discretion. Apparently the trial court, taking into consideration all the surrounding facts and circumstances, concluded that the defendant and his insurer had timely notice of the suit being filed and had for their own reasons neglected to answer or appear. We must remember that the defendant's insurance carrier had acknowledged the claim and did not deny receiving the letter dated January 6, 1977, advising them of the suit. We do not know the contents of the Travelers' file but it is reasonable to suppose that it at least gave the defendant notice of the plaintiff's action in filing suit against him. In any event, however, the defendant, knowing that he had been involved in an accident in North Chicago, Illinois, involving injury to a bike rider, certainly had reason to suppose the registered letter from an attorney in Waukegan, Illinois, might relate to that matter. His father, receiving the letter addressed to what had been until very recently his son's home, cannot be believed to have summarily rejected such letter, without previous instruction to do so from his son, or without having been told to do so upon receipt of the letter. The father states in his affidavit that he believed the letter was not intended for him. It is obvious that if it was not intended for him it was intended for his son; yet it was refused without further inquiry or attempt to provide a forwarding address. Under these circumstances, we can understand why the trial court did not give sympathetic consideration to a petition addressed to the court on the basis that the defendant was taken by surprise and had no opportunity to defend himself. We do not think, under these circumstances, that there was an abuse of the trial court's discretion in denying the section 72 petition.

• 2 The second prong of the defendant's argument is based on a very literal reading of the statute, applying to substituted service, as cited above. The defendant argues that the language "who shall not have received notice and a copy of the process by registered mail" means literally and exactly what it says and in his case he did not receive such notice, therefore, he has the right to appear within 1 year after notice was given of the judgment against him and this constitutes timely appearance. We do not consider that the bare words of the statute so clearly overcome its evident intent. Liberal provisions of the statute were intended, we think, to protect persons genuinely unaware of the proceedings against them and not advised because of some mistake, oversight, or change of location causing a lack of communication. We do not think the case before us was such a case. It is apparent that the defendant simply evaded the notice addressed to him by the plaintiff's attorney. A careful reading of the defendant's personal affidavit reveals that what he denies is not that the notice was mailed to his last known address but that "he received no copy of the summons." He does not say in his affidavit that he was unaware that a registered letter had been sent to him by Waukegan attorneys. The statute requires only that the copy of the summons and complaint be sent to the last known address of the defendant. We think that within the fair intent of the statute a registered letter addressed to such last known address which was received by the defendant's father at such address complies with the intent of the statute. Since the defendant does not deny he had knowledge of the letter, but merely denies that he "received" the summons, it is entirely reasonable to assume that he was advised by his father that the letter had been received before the father refused it. It would be unreasonable to suppose otherwise.

If we likewise carefully read the affidavit of the defendant's father in support of his son's affidavit, we note that it is carefully worded to the effect that the defendant did not "reside" at the address — 540 W. Mermaid Lane — at the time the registered notice was received there, but there is no statement that he had in any way lost touch with his son at that time. Nowhere in his affidavit does the father, Walter P. Miller, Jr., state that he did not inform his son that such a letter had been received by him and it is again reasonable to suppose that he did so ...

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