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10/08/87 David Hofmann, v. David Hofmann

October 8, 1987

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT VIKING DODGE INCORPORATED, PLAINTIFF-APPELLANT

v.

DAVID HOFMANN, DEFENDANT-APPELLEE



514 N.E.2d 248, 161 Ill. App. 3d 186, 112 Ill. Dec. 782

Appeal from the Circuit Court of Will County; the Hon. Edward D. Smith, Judge, presiding. 1987.IL.1517

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

On July 30, 1980, the defendant, David Hofmann, damaged a car owned by the plaintiff, Viking Dodge Incorporated.

In September of 1982 the plaintiff filed suit against the defendant for property damage.

On October 7, 1982, the summons was returned stating that the defendant was away at school and his present address was unknown. The plaintiff next attempted to serve the defendant by registered mail. The second summons was returned unopened with the notation "no longer at this address" written on the envelope.

The plaintiff then filed with the Illinois Secretary of State a copy of the summons and complaint pursuant to section 10-301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 10-301), which allows service of process upon a nonresident. On December 23, 1982, a default judgment was entered against the defendant.

On February 11, 1985, the defendant filed a special and limited appearance and a motion to quash the summons and vacate the default judgment. Following numerous continuances, the trial court denied the motion on November 7, 1985. During the pendency of the motion, on July 30, 1985, the five-year statute of limitations on the claim expired.

The trial court's Disposition of the motion to vacate was appealed to this court and in an opinion dated September 23, 1986, we reversed the order. This court held that the defendant was an Illinois resident and service under section 10 -- 301 was improper. (See Viking Dodge, Inc. v. Hoffman, (1986), 147 Ill. App. 3d 203, 497 N.E.2d 1346.) This court's decision came nearly 14 months outside of the statute of limitations.

On November 12, 1986, the plaintiff served the defendant's father at his home, the same address to which the initial summons was brought and the second summons mailed to. This service was made nearly 16 months after the expired statute of limitations deadline.

On November 26, 1986, the defendant sought to dismiss the complaint with prejudice pursuant to Supreme Court Rule 103(b), which permits the court to dismiss with prejudice an action where the plaintiff fails to exercise diligence in obtaining service after the statute of limitations has expired. (107 Ill. 2d R. 103(b).)

After hearing, on January 21, 1987, the trial court dismissed the complaint with prejudice. The plaintiff appeals the trial court's order asserting that the trial court abused its discretion.

A motion for dismissal for lack of diligence to obtain service of summons is addressed to the sound discretion of the trial court, and it is only when there is an abuse of discretion that a reviewing court will interfere. ...


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