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02/09/94 STANLEY PAUL v. WAYNE WARE

February 9, 1994

STANLEY PAUL, PLAINTIFF-APPELLEE,
v.
WAYNE WARE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Sheldon C. Garber, Judge Presiding.

Released for Publication April 19, 1994.

Cerda, Tully, Greiman

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

After the trial court entered a default judgment against defendant, Wayne Ware, he filed a motion to quash service of summons, which was denied. On appeal, defendant asserts that the default judgment against him is void because the trial court had no jurisdiction over him on the basis that (1) the trial court did not hear testimony on the issue of service; (2) any alleged service on him violated section 2-202 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-202 (now codified as 735 ILCS 5/2-202)(West 1992)) because the special process server was plaintiff's agent; and (3) he was not actually served. We affirm for the reasons that follow.

At issue is whether the appointment of plaintiff's agent as a special process server violated section 2-202(a) of the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1991, ch. 110, par. 2-202(a)(now codified) as 735 ILCS 5/2-202(a) (West 1992).

On November 29, 1990, plaintiff, Stanley Paul, leased the premises at 1615 N. Clybourn Avenue, Chicago, to defendant for the purpose of operating a restaurant and bar. On December 19, 1991, plaintiff filed a complaint in forcible entry and detainer against defendant, seeking possession of the property, $5,910.77 for rent and damages from December 1, 1991, and attorney fees.

On January 3, 1992, after the Cook County sheriff was unable to serve summons on defendant, Joel Barnett was appointed special process server. Both parties agree that Barnett was plaintiff's rental agent. He had negotiated the terms of the lease and collected rents from defendant on behalf of plaintiff.

On January 10, 1992, Barnett executed an affidavit stating that he personally served defendant. At a January 22, 1992, hearing, the trial court entered a default judgment against defendant. Based on that ruling, the trial court later entered an order granting plaintiff possession of the premises. The executed order for possession was filed with the Cook County Sheriff's office for defendant's eviction from the premises.

Before the sheriff executed the order for possession, plaintiff personally entered the premises and forced defendant's employees off the premises. He changed the locks and security system to prevent defendant's reentry.

At a hearing on defendant's emergency motion to stay the court's January 22, 1992, order, defendant alleged lack of service andplaintiff's illegal lockout. The trial court vacated the January 22, 1992, money judgment against defendant, but denied his motion to delay possession.

At a subsequent hearing, the trial court granted defendant's motion for reconsideration and found that defendant's original motion to stay did not constitute a general appearance. Defendant was given leave to file a motion to quash service of summons and plaintiff was granted leave to voluntarily dismiss the money count.

On June 29, 1992, the trial court allowed defendant to argue his pro se motion to quash service of summons. The trial court denied the motion, granted plaintiff possession of the property, and stayed the order for 30 days.

On July 15, 1992, defendant filed a special and limited appearance and a motion to quash service of summons with an attached affidavit, which alleged that (1) the appointment of the special process server violated section 2-202 of the Illinois Code of Civil Procedure because he was plaintiff's agent; (2) defendant was not in fact served with the summons; and (3) as a result of the failure of personal service on ...


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