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Garbenis v. Elrod

OPINION FILED SEPTEMBER 16, 1983.

AUDRONE GARBENIS ET AL., PLAINTIFFS-APPELLEES,

v.

RICHARD J. ELROD, SHERIFF OF COOK COUNTY, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This action challenges the authority of the sheriff of Cook County to retain service and mileage fees paid to the sheriff pursuant to section 1 of "An Act to provide for the fees of the sheriff * * *" (Ill. Rev. Stat. 1979, ch. 53, par. 71) for writs placed for service which are returned with the endorsement "not found." Initially, the individual and class action complaint filed by plaintiffs sought declaratory and injunctive relief as well as the refund of the disputed fees paid to the sheriff. Subsequently, plaintiffs filed a motion for summary judgment, which was followed by defendants' cross-motion for summary judgment. Defendants appeal from the trial court's order granting plaintiffs' motion for summary judgment and denying their cross-motion. For the reasons that follow, we reverse the judgment of the trial court.

On January 13, 1976, plaintiff Garbenis filed a civil suit in the circuit court of Cook County and, by her agent, delivered a summons to the sheriff's office which was to be served on the defendant named in Garbenis' suit. At that time, Garbenis' agent paid a $4 service fee to the sheriff and a mileage fee of $1.50. After seven attempts to serve the defendant at the address provided by Garbenis, the summons was returned with the endorsement "not found."

Similarly, on September 24, 1976, plaintiff Paulauskas filed a civil suit in the circuit court of Cook County and delivered a summons to the sheriff's office to be served on the named defendants in her suit. Paulauskas paid a service fee of $12 and a mileage fee of $2.70. Subsequently, the summons was returned with the endorsement "not found" as well as the deputy's written explanation that the defendants had moved from the address provided by plaintiff Paulauskas. No refunds of the service and mileage fees were made to either plaintiff' nor was a demand for a refund made by either plaintiff. Thereafter, plaintiffs filed the present lawsuit on behalf of themselves and all other persons similarly situated.

OPINION

This case arises under section 1 of "An Act to provide for the fees of the sheriff * * *" (Ill. Rev. Stat. 1979, ch. 53, par. 71) (section 1), which provides generally for the payment of service and mileage fees to the sheriffs of third class counties for serving writs. For purposes of this appeal, the relevant statutory language provides:

"The officers herein named, in counties of the third class, shall be entitled to receive the fees herein specified, for the services mentioned and such other fees as may be provided by law for such other services not herein designated.

Fees for Sheriff

For serving any summons on each defendant, $8.

Mileage for service of all process, 16¢ per mile each way necessarily traveled in making such service computed from the place of holding court." Ill. Rev. Stat. 1979, ch. 53, par. 71.

On appeal, defendants maintain that in accordance with long, continued practice, fees provided "for serving" writs may be retained by the sheriff whether or not actual service is effectuated, provided that the sheriff has exercised reasonable diligence in attempting to deliver the writ. Plaintiffs, on the other hand, argue that the language of the statute explicitly states that the sheriff is entitled to retain fees only when actual service has been made. In light of analogous precedent, we cannot accept plaintiffs' strict construction of the fee provisions of section 1.

Specifically, we find Fried v. Danaher (1970), 46 Ill.2d 475, 263 N.E.2d 820, and Glenview Credit Union v. Elrod (1983), 112 Ill. App.3d 842, 445 N.E.2d 1254, dispositive of the issue. In Fried, plaintiff filed a class action lawsuit to recover fees for the services of a jury paid by plaintiff in a previous case which had been settled prior to impaneling a jury. The supreme court found that because the jury fee statute (Ill. Rev. Stat. 1969, ch. 53, par. 51) did not include a refund provision, it was proper to infer that the legislature intended that the fee be used to defray the general costs of the jury system and not just to pay the costs of the particular jury services provided to the party paying the fee. In addition, the Fried court noted that the practice of retaining jury demand fees was consistent, long-continued and reasonable. As a result, the court found retention of the jury fees to be proper even though the right to retain the fees was not explicitly set forth in the statute.

Similarly, in Glenview Credit Union v. Elrod (1983), 112 Ill. App.3d 842, 445 N.E.2d 1254, plaintiff challenged the authority of the sheriff of Cook County to retain fees charged for mileage "necessarily traveled" to perfect service of an attachment where the sheriff mails a letter to the opposing party rather than physically traveling in order to serve the writ. Relying upon the "reasonableness" standard set forth in Fried, the court stated:

"If the three general prerequisites set out in Fried are satisfied here, we think it would be proper for the sheriff to charge and retain mileage fees even if actual travel was unnecessary to effectuate service. Specifically, it must be established that the statute at issue does not include a refund provision, that the complained of practice is reasonable and that the retained costs are ...


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