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Nibco, Inc. v. Johnson

OPINION FILED OCTOBER 21, 1983.

NIBCO, INC., APPELLANT,

v.

PATRICIA A. JOHNSON, APPELLEE. — PATRICIA A. JOHNSON, APPELLEE,

v.

FLOYD O. MCCULLER ET AL., APPELLANTS.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William R. Quinlan, Judge, presiding.

CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

These consolidated cases arose out of a motor vehicle collision. In March of 1977 Nibco v. Johnson was filed in the circuit court of Cook County seeking to recover for damage to Nibco's truck. In June of 1977, Johnson v. Nibco was filed by Patricia Johnson to recover for personal injuries. The sole issue presented for our review is whether or not the substitute service of summons in Nibco v. Johnson was valid.

A default judgment based on substitute service of summons was entered against Patricia Johnson in Nibco v. Johnson in April 1978. Based on this judgment, Nibco moved for a summary judgment in the personal injury suit, Johnson v. Nibco. Patricia Johnson then moved to quash service of summons in Nibco v. Johnson. The trial judge treated her motion to quash as a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, sec. 72), now a petition under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), and denied it. Nibco's motion for summary judgment in Johnson v. Nibco was granted.

Patricia Johnson filed a notice of appeal in connection with both of these matters. The appellate court, in a Rule 23 order (87 Ill.2d R. 23), reversed the decision of the circuit court, ordered service quashed, ordered the default judgment against Johnson vacated in Nibco v. Johnson, and ordered the summary judgment entered against Johnson in Johnson v. Nibco vacated. (109 Ill. App.3d 1209.) We granted Nibco's petition for leave to appeal.

Section 13.2(1) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 13.2(1)), which is now section 2-203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-203(a)), provides for substitute service of summons on individuals "by leaving a copy at his usual place of abode, with some person of the family, of the age of 13 years or upwards, and informing that person of the contents thereof, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his usual place of abode. The certificate of the officer or affidavit of the person that he has sent the copy in pursuance of this Section is evidence that he has done so." The sheriff's return of service reflects that Deputy Arthur Nawls effected service upon defendant Patricia Johnson by delivery of a copy of the writ to a person of her family over the age of 13 years named Moh Joe Johnson and that Deputy Nawls mailed a copy of the writ, postage paid, to defendant at her abode.

Patricia Johnson filed a motion to quash service of summons, supported by her affidavit stating that no Joe Johnson or other male lived with her on the date of the alleged service, and that she had no knowledge of the suit entitled "Nibco v. Johnson" prior to December 10, 1980, or of the judgment entered against her.

Deputy Nawls testified at the hearing on the motion to quash service, stating that his daily report sheet indicated he had attempted to effect service on Patricia Johnson and had in fact served Joe Johnson, who identified himself as a member of defendant's household. Nawls also explained that Moh before the name Joe Johnson on the return stands for member of household. During cross-examination, Nawls testified that he assumed Joe Johnson was living at the service address and was a member of the household. However, on redirect examination, Nawls stated that Joe Johnson had admitted knowing Patricia Johnson. It is not questioned that the service on Joe Johnson took place at Patricia Johnson's usual place of abode.

Patricia Johnson did not testify and offered no evidence in support of her motion other than the affidavit she had filed. The trial judge held for Nibco and denied Patricia Johnson's motion. The trial judge found that based upon Nawls' testimony, Joe Johnson had identified himself as a member of the household and that the deputy's testimony was "in effect a counteraffidavit." The judge went on to state: "We now have a situation of credibility. One [Patricia Johnson] is just making this self-serving statement that he is not a member of the household; and the other [Deputy Nawls] is saying that he was informed that he was a member of the household by the individual himself." As to Deputy Nawls' statement on cross-examination that he had assumed Joe Johnson lived at the abode of Patricia Johnson, the court had this to say:

"THE COURT: Well, I think that context in which the cross-examination takes place is not inconsistent with the statement that the individual was a member of the household.

It says, `Do you know whether or not he was living there?' And he says, `Right, he was there. And he said `he was living there at the time.' And later he said, `At the time, I assumed that he was living there.'

How does he know? A man is identified as a member of the household. Now you are asking, `Is he living in the house?' There is no way he can tell whether he's living there.

THE COURT: * * * He said the man identified himself as a member of the household. I'm trying to look at it fairly. I am not saying this is not a close question, but if we have to take it in the context in which we have it, if a man says, `I am a member of the household' — Now you are asking him was he living there? He said `I assumed so.' That's part of being a member of the household. He doesn't know. So I agree with him, he is a member of the household."

The judge went on to find that there was no reason for Deputy Nawls to lie and that he was believable.

In Marnik v. Cusack (1925), 317 Ill. 362, 364, this court spoke of a similar dispute which involved a question of personal service and stated:

"The stability of judicial proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence. [Citations.]"

Johnson does not dispute the rule as pronounced in Marnik v. Cusack but contends that rule applies only in cases of personal service and does not apply where there has been substitute service, as in the case now before us. In support of this position, Johnson cites Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App.3d 235. In Harris, the court stated:

"[W]here such a return is challenged by affidavit and there are no counteraffidavits, the return itself is not even evidence, and, absent testimony by the deputy, the affidavits must be taken as true and the purported service of summons quashed." (Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App.3d 235, 237.)

Although both Marnik and Harris correctly state rules of law concerning the effect of recitations in the sheriff's return, neither case is completely controlling under the facts of the case now before us. In Ingram v. MFA Insurance Co. (1974), 18 Ill. App.3d 560, the appellate court properly stated the effect of the sheriff's return where the service is had upon an agent of a corporation or when there is substitute personal service. The officer's return is prima facie evidence of service which cannot be set aside upon the uncorroborated affidavit of the person served. It can only be set aside by clear and satisfactory evidence. (Marnik v. Cusack (1925), 317 Ill. 362.) This rule applies, however, only to matters within the knowledge of the officer making the return, such as the facts that service was made, that it was made upon a person who gave his name as Joe Johnson in this case, and that service was made at a particular place. When service is had upon a corporation by serving an agent, the fact of agency of the person served may not be within the personal knowledge of the officer. The recital in the return that service was made upon a person who was an agent of the corporate defendant is not, therefore, conclusive and can be denied and placed in issue by the affidavit of the defendant. If the affidavit stands unrebutted or uncontradicted, it is a proper basis for quashing the service. (See Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App.3d 235.) The same rule applies where there is substitute personal service, as in our case. The fact that service was made upon a person who said his name was Joe Johnson and the place where it was made are within the personal knowledge of the officer and cannot be contradicted by the uncorroborated affidavit of the defendant. However, the recital in the return that Joe Johnson was a member of defendant's household was presumptively not within the personal knowledge of the officer. This recital could be denied by the affidavit of the defendant, as it was. If the affidavit were not contradicted, or if it were unrebutted, that part of the affidavit attacking those recitals in the return which are beyond the personal knowledge of the officer would be taken as true.

Here, however, Nibco did not rely solely on the return of the summons. When the question of the validity of the recitals in the return was raised, evidence of the deputy who made the service was presented in support of those recitals. The question of fact was thus presented to the trial court as to whether the person whom the deputy served was a member of the defendant's household on the date that service was made. The deputy gave evidence in support of his conclusion that Joe Johnson was a proper person upon whom substitute service could be made. We have set out much of that testimony above. Defendant Johnson offered no evidence to contradict or rebut the deputy's testimony. The trial court had, in support of her position, only the bare assertion contained in her affidavit, which, of course, is not subject to cross-examination. The weight to be given to the assertions in the affidavit and to the testimony of the deputy must be peculiarly within the province of the trial court.

In Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, this court discussed the proper review of findings of the trial ...


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