APPEAL from the Circuit Court of Cook County; the Hon. MARY
HEFTEL HOOTON, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, The Clinton Company, as agent for the Secretary of Housing and Urban Development, a/k/a Regents Park-North, brought a forcible entry and detainer action against defendants, James Eggleston and Patricia Eggleston, for possession of and unpaid rent for an apartment occupied by defendants. A default judgment was entered against defendants. Defendants filed a special and limited appearance and moved to quash service of summons. The motion to quash was stricken with prejudice. Defendants' motion to vacate that order was denied. Defendants appeal.
The record discloses the following: The forcible entry and detainer suit against both defendants was filed on November 8, 1978. The summons was directed to defendants at apartment 1510-N Regents Park-North, 5020 S. Lake Shore Drive, Chicago. The sheriff's return of service by deputy Gray recites that substituted service was had on November 10, 1978, on James Eggleston "at 7:00 AM/PM at his usual place of abode by delivering a copy thereof to a person of his family of the age of 13 years or upwards and informing person named Murk [sic] Mary Roe of the contents thereof, or by leaving a copy with F Race B, approx. age 30 who refused to identify self" and also by mailing a copy on November 14, 1978, to that defendant at such usual place of abode.
On November 20, 1978, defendants filed a special and limited appearance. On November 29, 1978, a default judgment was entered against defendants for possession, $389 damages and costs, with the writ of restitution stayed for 10 days. On December 6, 1978, defendants served notice on plaintiff that on December 8 they would appear and petition the court to quash service. A copy of the petition was attached to the notice.
In their petition to quash service, defendants alleged that they had never been served with summons; that the purported return of service by the sheriff was false in stating that he "served James Eggleston at his usual place of abode at 7:00 (AM or PM not specified) by leaving a copy of the summons and complaint with `Murk Mary Roe' female, black, of the age 30 on November 10, 1978" because no one by that name or description lives at the purported address of service and there is no family member by that name, age or description; that the affidavit of the sheriff is defective in that it does not show the proper time of day of the service as required by section 13.2 of the Civil Practice Act; that Patricia Eggleston was never served and that there is no return of service showing that she was ever served.
Defendants' affidavit in support stated: On November 10, 1978, there was no one residing at 5020 So. Lake Shore Drive, Apartment 1510N, by the name of "Murk Mary Roe" who was black, female and of the age of 30 years; neither is there a family member by that name, age or description. There are only four members of the household, Patricia and James Eggleston and two small children, ages 8 and 6. On November 10, 1978, at the purported time of service (if at 7 p.m.), no one was home or at the address of the purported service, neither James nor Patricia Eggleston nor any other person was present. James Eggleston arrived home about 8 p.m. on November 10, 1978, and found a summons purported to be addressed to James and Patricia Eggleston from The Clinton Company slid under the entrance door to apartment 1510N. At 7 p.m. on November 10, 1978, Patricia Eggleston was at her place of employment, 30 West Washington Street, Suite 1339, Chicago, and has never been served with summons. At 7 a.m., November 10, 1978, no one appeared at 5020 S. Lake Shore Drive, Apt. 1510, with a summons. At 7 a.m., November 10, 1978, no one named "Murk Mary Roe" who was black, female and 30 years of age resided at 5020 S. Lake Shore Drive, Apt. 1510, and there was no such member of the family.
The affidavit of Arthur H. Grant, also filed in support, stated that on November 10, 1978, Patricia Eggleston was employed as an attorney with his law firm at 30 West Washington Street, Suite 1339, Chicago, and at 7 p.m. on that date was in that suite and had been there since 4 p.m.
On December 8, 1978, defendants failed to appear and the petition was stricken. On the same day, defendants served notice on plaintiff that they would appear on December 11, 1978, and move the court to quash service in accordance with the petition previously served. The motion was continued to December 14, 1978. On that date the presiding judge instructed plaintiff to subpoena, for a hearing on December 20, the deputy sheriff who had served the summons. Defendants' attorney failed to appear at that hearing.
The report of proceedings of the hearing on December 20 shows that at about 3:10 p.m. the trial judge passed the matter for a few minutes to allow defendants' attorney to call. After a short recess, the court stated that it was then 3:40, that defendants' attorney had said he would be there at 3:30, and that the trial judge had to be back in another courtroom because there was a shortage of judges. The court then summarized defendants' motion to quash and their affidavits in support and heard the testimony of deputy Gray.
Gray testified that on November 10, 1978, at about 7:15 p.m., he was at apartment 1510 at 5020 South Lake Shore Drive to serve a summons for forcible entry. He knocked on the door and a female asked who it was, and he said, "I have some mail for you." She asked, "What kind of mail?" He identified himself as a deputy sheriff. She opened the door and as she saw it she started closing the door and he dropped the summons inside as she was closing the door. When she opened the door he saw her face. She seemed to be a female, black, approximately 30 years of age, slender built. When he identified himself as a deputy sheriff, he stated the reason why he was there. The only thing she did was to close the door.
Plaintiff's counsel then moved that defendants' motion to quash the summons be stricken with prejudice. His motion was granted.
On December 28, 1978, defendants served notice on plaintiff that they would appear that day to vacate the order of December 20 and to allow the motion to quash service. The motion was entered and continued to December 29. Defendants' petition to vacate the order and the affidavit of defendants' attorney in support alleged that on December 20 defendants' attorney had been delayed in court at 26th and California, that he had spoken to the trial judge and told the trial judge at about 3:10 p.m. that he would be delayed in reaching the Daley Center for 20 to 40 minutes, that the trial judge had replied, "We will wait until you get here," that the battery in his car went dead and he was unable to get a cab and had to take a bus; that he arrived at the Daley Center at approximately 3:45 p.m. and learned the trial judge had conducted a hearing on defendants' petition and had denied it with prejudice, without either defendants or their attorney present.
On December 29, 1978, defendants' motion to vacate was continued for hearing on January 8, 1979, and the writ of restitution stayed. On January 8 the court denied defendants' motion and stayed the writ of restitution pending appeal.
Defendants' notice of appeal from the judgment of November 29, 1978, and the orders of December 20, 1978, and January 8, 1979, asks this court to vacate the order of the trial court denying their petition to ...