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08/25/88 Josephine Alvarez, v. Joseph Feiler

August 25, 1988

JOSEPHINE ALVAREZ, PLAINTIFF-APPELLEE

v.

JOSEPH FEILER, SR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

528 N.E.2d 354, 174 Ill. App. 3d 320, 123 Ill. Dec. 809 1988.IL.1311

Appeal from the Circuit Court of Cook County; the Hon. Eddie C. Johnson, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Josephine Alvarez, a tenant, brought this action against defendant, Joseph Feiler, Sr., her landlord, for damages sustained when defendant allegedly changed the lock on the door to her leased apartment on May 8, 1984, without proper notice to terminate her tenancy and without initiating a forcible detainer action. The court entered an order of default on April 2, 1985. On August 14, 1985, judgment in plaintiff's favor for $5,000 was entered based on a jury verdict for damages. On February 25, 1986, defendant filed a motion to vacate the judgment and to quash the service of process. The motion was denied. Defendant appeals, contending that the trial court erred because, contrary to the requirements of section 2-203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-203(a)), the deputy sheriff who allegedly served his wife did not mail him a copy of the summons and did not inform the woman served of the contents, but merely stated that he had a paper for her husband.

We affirm.

BACKGROUND

The return contained in the record shows that deputy sheriff George Donatelli served a 50-year-old woman on October 8, 1984, at 1:45 p.m. Service was on "member of family, wife." In the space for "additional remarks" some writing is covered over with a white material.

Defendant's motion to quash service of process and vacate the judgment stated that defendant had never been served with process and never received a copy of the summons in the mail; he also denied that his wife, Mary Ann, was served with a copy of the summons and complaint on October 8, 1984. Defendant stated that he was 39 years of age in October 1984 and the only family members who resided with him at 5836 West Pershing Road in Cicero were his wife and his son, Joseph. Defendant stated his belief that the sheriff may have erroneously served defendant's neighbor at 5836 1/2 West Pershing Road. He also challenged the sheriff's return showing service on his wife on October 8, 1984, and noted that comments on the return had been altered and apparently defaced.

Deputy sheriff George Donatelli testified that on October 8, 1984, he knocked on the door at 5836 West Pershing Road in Cicero, and a woman answered but would not say whether she lived there. Donatelli asked if defendant was at home and the woman responded, "No, he's not here, he doesn't live here." Donatelli then asked for his address stating that he had a paper for her husband. However, the woman would not answer the question, refused to show him identification, stated "I ain't giving him nothing" and closed the door before he was able to give her the summons. He then knocked on the door several times but the woman did not answer. He then opened the screen door and pushed the summons underneath the inner door into the house. The deputy further testified that he verified his service of summons on the defendant's wife by a conversation with the next-door neighbor. He also certified that he later mailed a copy of the summons to the defendant but he did not personally put the copy into the mail. He explained that the policy of the sheriff's department once substitute service had been made was to send out notices stating that summons had been served. A copy of the summons would also be sent to the address where the summons was served.

At the hearing on his motion to quash, defendant's position was that he and his wife, Mary Ann, were in Wisconsin on the dates that Donatelli supposedly served the summons.

Mary Ann Feiler testified that she is defendant's wife. In October 1984, they lived at 5836 Pershing Road in Cicero. In the latter part of September 1984, she, her husband and son went to their home in Adams, Wisconsin, and remained there until mid-October. She identified gasoline receipts she received on October 7 and October 8, 1984, in Adams when her husband was with her. Before going to Wisconsin, she gave keys to her Cicero home to her mother and sister. She did not remember receiving a copy of the summons in the mail in Cicero and denied altering the date on the October 8 gas receipt.

Defendant testified that he was in Wisconsin on October 8, 1984, with his wife while his mother-in-law and sister-in-law were watching his house. He denied that he received a copy of the summons in the mail stating that his relatives had keys to his home and would take any mail that would have come during that ...


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