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08/05/88 Deborah A. Schorsch, v. Fireside Chrysler-Plymouth

August 5, 1988





527 N.E.2d 693, 172 Ill. App. 3d 993, 123 Ill. Dec. 230 1988.IL.1230

Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. DUNN and INGLIS, JJ., concur.


Defendants, Fireside Chrysler-Plymouth, Mazda, Inc. (Fireside), and Chrysler Credit Corporation (Chrysler Credit), each appeal from an order denying, in part, their petitions to vacate default judgments pursuant to section 2-1401 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) against them and in favor of plaintiff, Deborah A. Schorsch.

Plaintiff filed a three-count complaint against Fireside and Chrysler Credit based on conversion in count I, a violation of the Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 561 et seq.) in count II, and a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.) in count III, involving the repossession of a Mazda RX7 automobile purchased by plaintiff from Fireside and financed by Chrysler Credit. Plaintiff's motion for a default against both Fireside and Chrysler Credit for their failure to answer or appear to the complaint was granted, and, following a subsequent hearing, plaintiff was awarded judgment, jointly and severally, against Fireside and Chrysler, of $10,445 compensatory damages and $144,500 punitive damages in count I, $4,500 attorney fees in count II, and $10,445 compensatory damages, $250,000 punitive damages, and $4,500 attorney fees in count III.

Approximately 38 days following the entry of the order awarding damages, Fireside and Chrysler Credit filed an emergency petition under section 2 -- 1401 to vacate the judgment and dismiss garnishment proceedings begun against them. In this petition and in a later filed amended petition and supplementary motions to vacate and to quash service of process, Fireside and Chrysler contended, inter alia, that service of process was not properly obtained. Following evidentiary hearings, the trial court denied the section 2 -- 1401 motions, except as to count III, wherein the court, "in the exercise of its equitable powers," set aside the award of $250,000 in punitive damages.

Both Fireside and Chrysler Credit raise numerous issues on appeal. As we believe the questions presented as to service of process on each party are dispositive of the appeal, we have not summarized the lengthy facts pertaining to the other points raised.

Fireside has raised several contentions relating to the service of process on it. Fireside maintains that the service of process by a licensed or registered private detective is invalid in Cook County, that service of process by a private detective who is not licensed or registered is invalid, that the process server failed to serve Fireside with the summons and complaint, and that service of process on its employee was unauthorized. We need only address whether the service of process on Fireside at its offices in Cook County by a private detective is authorized pursuant to section 2-202 of the Civil Practice Law. Ill. Rev. Stat. 1985, ch. 110, par. 2-202.

The record shows that following the filing of the complaint against Fireside and Chrysler Credit, summons was issued by the clerk of the circuit court of Du Page County on April 22, 1986. This summons was subsequently filed with the clerk on May 2, 1986, with the affidavit of a special process server attached. The affidavit by the process server, Jerry R. Waite, states that he is authorized to effectuate service of process as a private detective pursuant to section 2 -- 202 and that he served process on Fireside on April 24, 1986, at 1020 Golf Road, Schaumberg, Illinois, by leaving a copy of the summons, complaint, and a temporary restraining order with Roy Jacobson. The parties agree that the Fireside offices on Golf Road, where process was served, are in Cook County.

Section 2 -- 202, as in effect at the time of service, provided, in pertinent part:

"Sec. 2 -- 202. Persons authorized to serve process -- Place of service -- Failure to make return. (a) Process shall be served by a sheriff, or if the sheriff is disqualified, by a coroner of some county of the State. In counties with a population of less than 1,000,000 process may be served, without special appointment, by a person who is licensed or registered as a private detective under the Private Detective and Private Security Act of 1983. The court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action. It is not necessary that service be made by a sheriff or coroner of the county in which service is made. If served or sought to be served by a sheriff or coroner, he or she shall endorse his or her return thereon, and if by a private person the return shall be by affidavit.

(b) Summons may be served upon the defendants wherever they may be found in the State, by any person authorized to serve process. An officer may serve summons in his or her official capacity outside his or her county, but fees for mileage outside the county of the officer cannot be taxed as costs. The person serving the process in a ...

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