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A-z Equipment Co. v. Moody

OPINION FILED SEPTEMBER 4, 1980.

A-Z EQUIPMENT COMPANY, PLAINTIFF-APPELLANT,

v.

KENNETH MOODY, D/B/A KEN MOODY MASONRY COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK G. SULEWSKI and the Hon. MEYER H. GOLDSTEIN, Judges, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, A-Z Equipment Company, appeals from an order of the circuit court quashing service of summons and vacating a default judgment, entered against defendant, Kenneth Moody, d/b/a Ken Moody Masonry Company. In this appeal, plaintiff contends that the service of summons on the Ken Moody Masonry Company was, in fact, valid service of process on Kenneth Moody, the real party in interest doing business as the Ken Moody Masonry Company and that the trial court lacked jurisdiction to grant such relief since the aforesaid motion was filed in excess of 30 days after judgment. Defendant has filed no brief in this matter, but we shall consider the merits of plaintiff's position. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

On February 1, 1979, plaintiff filed suit against the Ken Moody Masonry Company in order to recover payment of rentals due on certain leased equipment and damages resulting from defendant's conversion of this equipment. *fn1 The summons and complaint refer to defendant only as the Ken Moody Masonry Company. Neither indicated that defendant was a corporation, partnership or sole proprietorship. The summons directed the sheriff to serve defendant at 14021 Reeves Street, Robbins, Illinois. On February 6, 1979, the deputy sheriff made the following return of service:

"I have duly served the within writ upon the within named defendant Ken Moody Masonry Co. a corporation, * * *, by leaving a copy thereof with Sec on Duty Agent RICHARD J. ELROD, Sheriff, by Leatherwood Deputy."

On February 23, 1979, an order of default based on personal service was entered against defendant for failure to appear or plead in response to the complaint. On April 4, 1979, this default order was vacated on plaintiff's motion for leave to file an amended complaint in order to amend the ad damnum in both counts. According to plaintiff, and as supported by the memorandum of orders contained in the record, Kenneth Moody appeared at this time in court, and defendant was given 28 days to file an answer to the complaint. Once again, defendant failed to file an appearance and answer to the complaint, and a default judgment in the amount of $2,358.80 was entered against defendant on May 23, 1979.

Subsequent to the entry of this order, it was discovered that defendant was not a corporation but a sole proprietorship, owned and operated by Kenneth Moody. On June 22, 1979, plaintiff made a motion, with notice to Kenneth Moody in care of Ken Moody Masonry Company at the above-described address, to modify and amend the judgment entered on May 23, 1979, so that it would read against "defendant, Kenneth Moody d/b/a Ken Moody Masonry Company * * *." This motion was granted by the trial court and the order, regarding this motion, states as follows:

"IT IS ORDERED that the plaintiff's motion is hereby granted, and the judgment entered on May 23, 1979 is hereby modified and amended to read as follows:

It is therefore ordered that plaintiff, A-Z Equipment Co. have and recover judgment against defendant, Kenneth Moody d/b/a Ken Moody Masonry Co. in the sum of $2,358.80 plus costs of suit, and that execution issue thereon forthwith."

On August 22, 1979, an execution was issued to the sheriff and a levy was then made on an automobile owned by Kenneth Moody to satisfy the judgment.

On September 13, 1979, Kenneth Moody filed a motion to quash the service of summons. This motion generally alleged that he had never been served personally. After hearing arguments, the trial court, on September 24, 1979, entered an order which quashed the service of summons and vacated the aforesaid default judgment as null and void ab initio.

• 1 As stated above, plaintiff contends that service of summons on the Ken Moody Masonry Company, a nonexistent corporation, was valid service of process on Kenneth Moody, the real party in interest, and that the trial court lacked jurisdiction to quash the service of summons and vacate the aforesaid default judgment since defendant's motion, requesting such relief, was filed more than 30 days after judgment was entered. Since we are in agreement with plaintiff's first assertion, we shall not consider his second contention:

Section 21(2) of the Civil Practice Act states:

"Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court ...


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