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Washington v. Clayter





APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS BUA and the Hon. HARRY ISEBERG, Judges, presiding.


Rehearing denied December 30, 1980.

The defendant, Richard Clayter, motioned the trial court to vacate a default judgment entered against him. He contended that the default order of the trial court was void because he had not received proper service of summons. On this theory, all actions of the court subsequent to the improper service were also void. Further, he claimed that he did not receive notice of the ensuing court proceedings and, accordingly, was not represented at either the default or the damage assessment hearings. He also argued that plaintiff's delay in executing on the default judgment should have warranted the grant of his motion to vacate.

The essential facts which instigated the motion to vacate are these. On August 21, 1975, plaintiff filed a complaint in the circuit court of Cook County against defendant Richard Clayter, an attorney who had originally been retained to represent plaintiff in another action. Plaintiff's complaint and the other pleadings filed in this action allege the following facts. In March 1963, plaintiff was struck by a motor vehicle and suffered severe injuries. Plaintiff's mother, because plaintiff was then a minor, retained defendant to pursue personal injury claims against the other parties involved in the accident. On July 8, 1968, five years later, defendant filed suit on behalf of plaintiff against Polaris Engineering Company and Robert Lee Reed, seeking damages of $331,000. Defendant obtained service of process for the first time on Polaris in 1972, four years after the filing of the suit. After it received service, Polaris filed a motion to dismiss plaintiff's cause of action. The motion to dismiss was predicated on plaintiff's failure to exercise due diligence in the service of summons, as required by Supreme Court Rule 103(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 103(b)). The trial court ruled in favor of Polaris, granting the company's motion to dismiss the complaint. Polaris, however, appealed the ruling, because it was entered without prejudice and Polaris sought a ruling which would bar refiling of the cause. In 1973, while the appeal was still pending, defendant refiled the suit on plaintiff's behalf.

On January 11, 1974, the trial court, with a different judge sitting, dismissed the refiled complaint. Once again, the reason for the dismissal was specified as dilatory service of summons. Defendant referred plaintiff's action to another attorney who presumably would pursue an appeal of the trial court's dismissal. The appellate attorney failed to comply with procedural requisites for appeal and the appeal was dismissed in October 1974. The instant complaint for professional malpractice was filed on August 21, 1975, following plaintiff's consultation with an attorney in Hamden, Connecticut. An attorney was then engaged in Chicago to initiate a malpractice claim against defendant. Summons issued, and was purportedly served by sheriff's police, on September 2, 1975. Defendant did not answer the complaint or otherwise appear following issuance of summons.

On May 12, 1976, plaintiff's notice of motion for a default order was mailed to defendant. On May 17, both defendant and plaintiff by his attorney appeared before Judge Bua. No transcript of this hearing is contained in the record, but defendant apparently maintained that he had not been properly served with summons. Judge Bua allowed defendant 14 days to file affidavits to that effect or, in the alternative, pleadings responsive to plaintiff's complaint. In that same order, Judge Bua continued plaintiff's motion for a default order to May 31.

Although unknown at the time the May 31 date was set, May 31 was a court holiday. Plaintiff, on discovering this fact, sent a letter to defendant announcing the rescheduling of the court date to May 28. Defendant did not appear at the May 28 hearing or otherwise comply with the trial court's order to produce affidavits. The trial court granted plaintiff's motion for a default order. A notice of motion appears in the record, dated July 15 1976, scheduling a court date for the assignment of the action for trial on damages.

On July 20, the case was heard in a different courtroom on the no progress call. That judge set the case for trial on damages for August 16. On that date, the court heard sworn testimony by plaintiff, and awarded damages of $150,000. Other than the May 17 hearing, defendant failed to appear at any of the court dates leading to the entry of the default judgment.

In December 1977, plaintiff, by way of another attorney retained by his acting attorney, endeavored to garnishee defendant's bank account. This account contained $521.89. Soon thereafter, on January 11, 1978, defendant filed a petition to vacate the default judgment entered against him over 16 months before. He contended that "the court was without jurisdiction to enter the * * * judgments for the reason that no summons or process of any kind, had been served on movant nor anyone else in his behalf, and he had no Notice or knowledge of the pendency of this cause." He further alleged that the sheriff's return of service was faulty and should be stricken. Plaintiff replied to the motion, stating that defendant had received notice of the pendency of the action because defendant had appeared before Judge Bua on May 17, 1976. Defendant, in his response, "expressly and vehemently" (emphasis added) denied being in Judge Bua's courtroom on May 17, 1976, and restated his contention that he had never been served with summons or any other process in the matter. Defendant also submitted the affidavit of his secretary to the effect that he was not in the office on the date when summons was allegedly served.

The cause progressed through a series of ten continuances, from March 1978, to April 1979. On May 18, 1979, the 11th continuance was granted, to allow defendant an opportunity to retain an attorney. That attorney was not ready for trial, although he did file an appearance on June 4, 1979, and another continuance was granted, this time to June 27, 1979. On June 28, defendant was permitted to file an amended petition to vacate. The hearing on the petition was set for August 1979, almost 20 months after the filing of the original petition to vacate.

The amended petition contained for the first time an admission that defendant was in fact present at the May 17 hearing before Judge Bua. The petition also conceded that "defendant did not appear in court on May 31, 1976, the date set on May 17, 1976, because such date fell on a holiday, Memorial Day, and defendant was of the opinion that plaintiff would inform him of the new date once the inadvertent court date was discovered." Defendant further alleged that he had forgotten about plaintiff's lawsuit and had, accordingly, failed to follow its progress. Defendant also maintained that he had received no notice of the entry of the default judgment. Attached to the petition was an affidavit from a business client, averring that defendant was not in his office, but on the contrary, was with the affiant on the date of service.

The trial court, with the same judge sitting who had granted the default judgment, entered an order on October 22, 1979. The order recited that the trial court had "examined briefs and affidavits submitted by counsel and [had] heard oral argument and [was] fully advised in the premises." The court then denied defendant's motion to vacate. This appeal followed.

• 1-3 Where a defendant appears specially and establishes that he has not been served with summons, the court is without jurisdiction to enter judgment against him. (G. Brock Stewart, Inc. v. Valenti (1976), 43 Ill. App.3d 673, 674, 357 N.E.2d 180.) Any judgment so entered would be void whether or not the defendant had actual knowledge of the proceeding. (Gocheff v. Breeding (1977), 53 Ill. App.3d 608, 610, 368 N.E.2d 982.) A person attacking a default judgment for lack of personal jurisdiction is not restricted by the usual due diligence requirements of a petition under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) The provisions of section 72 do not affect the right to relief from void orders. (See Ill. Rev. Stat. 1979, ch. 110, par. 72(6); see also First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App.3d 901, 905, 393 N.E.2d 574.) Therefore, if defendant properly objected to service of summons prior to filing a general appearance or, failing to receive proper service, simply did not appear during the pendency of the original proceeding and then made a motion to vacate following the entry of a default judgment, the trial court's order must be set aside as void. See Abron v. Public Pontiac, Inc. (1965), 64 Ill. App.2d 73, 77-78, 212 N.E.2d 326.

In the instant case, however, several factors preclude our resort to the well established rules of law set out above. In the usual case, defendant appears in court to challenge the service of summons and to present affidavits or evidence to overcome the presumptive validity of the service of summons. (See, e.g., Sears, Roebuck & Co. v. Sigman (1956), 12 Ill. App.2d 556, 140 N.E.2d 376. (abst.).) In contrast, defendant herein appeared in court, made a conclusory challenge to service, and was granted 14 days in which to substantiate his claims. Instead of returning to court with the affidavits within the time prescribed by the trial court, defendant permitted the 14 days to expire, failing to present any evidence to the court to support his claims of improper service. He now endeavors to justify his conduct by ...

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