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Bank of Ravenswood v. King

OPINION FILED APRIL 2, 1979.

BANK OF RAVENSWOOD, TRUSTEE, PLAINTIFF-APPELLEE,

v.

NANCY KING, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LIONEL J. BERC, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, Bank of Ravenswood, trustee under Trust #2824, brought an action under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1977, ch. 57, par. 1 et seq.) against the defendant, Nancy King, for possession of an apartment occupied by her. A default judgment was entered against defendant and she was evicted. Defendant appeared specially and moved to quash the service of process on her, to vacate the default judgment for possession and for an order to allow her to return to her apartment. The trial court denied her motion and the defendant appeals from that denial and from the default judgment.

The record discloses the following:

On February 27, 1978, plaintiff filed suit against the defendant seeking possession of Apartment 301 at 2572 Lincoln Avenue, Chicago. Summons was issued and returned by the sheriff "Defendant not found in my county this 3 day of Mar. A.D. 19

" and with the further notation "No answer — 4 tries."

The here pertinent part of section 10.1 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1977, ch. 57, par. 10.1) provides:

"§ 10.1 Constructive service — Affidavit — Notice.]

If the plaintiff, his agent, or attorney files a forcible detainer suit, with or without joinder of a claim for rent in the complaint, and has been unable to obtain personal service on the defendant and a summons duly issued in such suit has been returned without service stating that service could not be obtained, then the plaintiff, his agent or attorney may file an affidavit stating that the defendant is not a resident of this State, or has departed from this State, or on due inquiry cannot be found, or is concealed within this State so that process cannot be served upon him, and also stating the place of residence of the defendant, if known, or if not known, that upon diligent inquiry the affiant has not been able to ascertain the defendant's place of residence, then in all such forcible detainer cases whether or not a claim for rent is joined with the complaint for possession, the defendant may be notified by posting and mailing of notices; or by publication and mailing, as provided for in the Civil Practice act.

Such notice shall be in the name of the clerk of the court, be directed to the defendant, shall state the nature of the cause against the defendant and at whose instance issued and the time and place for trial, * * *. The sheriff shall post 3 copies of the notice in 3 public places in the neighborhood of the court where the cause is to be tried, at least 10 days prior to the day set for the appearance, and, if the place of residence of the defendant is stated in any affidavit on file, shall at the same time mail one copy of the notice addressed to such defendant at such place of residence shown in such affidavit. On or before the day set for the appearance, the sheriff shall file the notice with an endorsement thereon stating the time when and places where he posted and to whom and at what address he mailed copies as required by this Section. For want of sufficient notice any cause may be continued from time to time until the court has jurisdiction of the defendant."

On March 8, 1978, plaintiff's attorney filed a printed form "Affidavit for Service by Publication," stating defendant "is concealed within the state so that process cannot be served upon defendant" and that "defendant's place of residence * * * is 2572 Lincoln Ave., Apartment 301, Chicago, Illinois 60614." This affidavit was ink-stamped "POSTING NOTICE." Also filed on the same date was a printed form "Forcible Detainer-Notice by Posting." It, too, was ink-stamped "POSTING NOTICE." This form, headed "Notice Requiring Appearance in Pending Action," was addressed to defendant at 2572 Lincoln Ave., Chicago, IL. 60614.

On March 27, 1978, a default judgment for possession was entered against defendant for failure to appear, with the writ of restitution stayed for seven days. On April 24, 1978, defendant was evicted from the apartment.

On May 12, 1978, defendant filed her special appearance and a motion, supported by her affidavit, to quash service of process, vacate the default judgment and order defendant's return to the apartment. The motion stated that defendant is and was at the time of the filing of the suit a resident of Illinois and resided at 2572 North Lincoln Avenue, Apartment 301, Chicago, Illinois, at the time the suit was filed and until her eviction on April 24, 1978, and that plaintiff, the owner of this building, so knew. Defendant has not departed from Illinois since before this action was filed and is not concealed within Illinois and has not been since suit was filed so that process cannot be served on her. Defendant could have been found at all times from the filing of this action at her residence at 2572 North Lincoln Avenue, Apartment 301, Chicago. Defendant has not received any notice by mail informing her of this action. She did not received any notice of this action until the sheriff arrived at her residence and began removing her belongings on April 24, 1978.

The motion further stated that she was never properly served with process as provided by section 10.1 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1977, ch. 57, par. 10.1) and that the service under section 10.1 was defective because (a) plaintiff could have obtained service on her through the offices of the sheriff, (b) defendant was a resident of Illinois, had not departed from the State, was not concealed in the State to avoid service and could have been found at the address from which she was evicted, (c) the sheriff failed to mail to defendant at the address stated in plaintiff's attorney's affidavit a copy of the notice called for by section 10.1, and (d) the sheriff failed to endorse the notice showing when and where he posted the notice and to whom and at what address he mailed the notice required by section 10.1.

Defendant's motion also stated that both section 10.1 on its face and the manner in which the notice was served violate the due process clause of the Fourteenth Amendment to the United States Constitution ...


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