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Allied Amer. Insur. Co. v. Mickiewicz

OPINION FILED MAY 29, 1984.

ALLIED AMERICAN INSURANCE COMPANY, AS SUBROGEE OF JAMES JARRETT, PLAINTIFF-APPELLEE,

v.

ADAM MICKIEWICZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Carl McCormick, Judge, presiding.

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Plaintiff insurer, Allied American Insurance Company (Allied), brought this action as subrogee of its insured to recover funds paid under the uninsured motorist provisions of an automobile insurance policy. Allied filed its complaint on March 11, 1982, alleging that defendant, Adam Mickiewicz, had negligently operated his automobile which proximately resulted in injury and death to its insured. Plaintiff further alleged that by virtue of a policy of insurance in force at the time, it was thereby compelled to pay over $9,000 in claims to the estate and heirs of the insured. Allied, as subrogee, sought reimbursement from defendant for the funds so paid.

A summons was placed with the sheriff of Cook County with directions to attempt service on the defendant at 4622 South Mozart in Chicago, Illinois. On April 4, 1982, the initial summons was returned "not found," "wrong address." An alias summons was issued on July 16, 1982, for service at the same address but was again returned "not found." The sheriff's return indicated that defendant had moved and left no forwarding address.

Plaintiff then sought to serve defendant by delivering a summons to the Illinois Secretary of State pursuant to the provisions of section 10-301 of the Illinois Vehicle Code for service of process on nonresident motorists. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 10-301.) Another alias summons issued on November 3, 1982, with instructions to serve the Secretary of State and was certified by that office as having been accepted on November 16, 1982. On December 17, 1982, plaintiff's attorney filed a preprinted form affidavit wherein he swore "on information and belief the defendant is a non-resident of the State of Illinois or was a resident of this State and subsequently became a non-resident of this State." Along with this affidavit, plaintiff's attorney filed a copy of the alias summons served upon the Secretary of State. On February 8, 1983, an ex parte judgment was entered against defendant for $9,000 plus costs.

Thereafter, on April 12, 1983, pursuant to the provisions of section 2-301 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-301), defendant filed a special appearance contesting jurisdiction over his person and moved to quash service of summons and vacate judgment. In support of his motion, defendant submitted an affidavit wherein he stated:

"1. At all times mentioned in the Complaint filed herein and continuously thereafter to the present time, your affiant has been and is an actual resident of the State of Illinois.

2. At no time since the date of the occurrence alleged in said Complaint has your affiant moved from the State of Illinois, and, further, affiant has remained an actual resident of the State of Illinois."

Plaintiff never moved to strike defendant's affidavit, nor did it proffer any counteraffidavit.

On April 22, 1983, after hearing the arguments of counsel, the trial court entered an order denying defendant's motion. The court stated that

"[d]efendant's affidavit, which states that he was and is a resident of the State of Illinois at all applicable time [sic], is a conclusion and insufficient to raise the issue of residency."

Defendant appeals from this order of the trial court arguing that his affidavit was proper and that the trial court erred in refusing to quash service of summons and vacate the ex parte judgment. We agree.

• 1 In order to obtain jurisdiction over the person of defendant, proper service of summons is required. (In re Adoption of Miller (1982), 106 Ill. App.3d 1025, 1028-29, 436 N.E.2d 611.) Where a court does not have personal jurisdiction over the defendant, any order it enters against him is void ab initio and subject to direct or collateral attack at any time. Hatcher v. Anders (1983), 117 Ill. App.3d 236, 237-38, 453 N.E.2d 74.

• 2 In the present case, service of process was made pursuant to section 10-301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 10-301), frequently referred to as the nonresident motorist statute. Under this statutory provision, substituted service of process on the defendant may be obtained by serving the Illinois Secretary of State, provided that the claim arises from the use of a motor vehicle within this State, the defendant is a nonresident or subsequently becomes a nonresident, and notice of the action is sent to the nonresident defendant's last known address. A party claiming substituted service under the nonresident motorist statute must demonstrate strict compliance with every requirement of the statute. (Rompza v. Lucas (1948), 337 Ill. App. 106, 113, 85 N.E.2d 467.) This is accomplished by submitting an affidavit of compliance to the court. (337 Ill. App. 106, 113-16.) Where the requirements of section 10-301 are met, the service is valid and the court has jurisdiction over the person of the nonresident defendant even if the defendant never receives actual notice of the litigation. Ogdon v. Gianakos (1953), 415 Ill. 591, 114 N.E.2d 686; Hatcher v. Anders (1983), 117 Ill. App.3d 236, 453 N.E.2d 74.

• 3 Clearly, substituted service on the Secretary of State pursuant to the nonresident motorist statute will confer no jurisdiction over the person of an Illinois resident. The plain language of the statute permits substituted service only where the defendant "is a non-resident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a non-resident of this State." (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 10-301(a).) We believe defendant's unrebutted affidavit sufficiently ...


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