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04/10/96 BRUCE HARRIS v. WALLY'S WORLD FUN

April 10, 1996

BRUCE HARRIS, AS NEXT FRIEND AND NATURAL GUARDIAN OF RACHEL HARRIS, A MINOR, PLAINTIFF-APPELLEE,
v.
WALLY'S WORLD OF FUN, LTD., A DISSOLVED ILLINOIS CORPORATION, "HI SPEED BATTING CAGES-HI SPEED RACING," AN UNREGISTERED AND FICTITIOUS ENTITY, CHARLIE'S BLAZING WHEELS CO., AN ILLINOIS CORPORATION, WILLIAM S. PETYKO, AN INDIVIDUAL, THOMAS SIMPSON, AN INDIVIDUAL, MICHAEL PELFRESNE, AN INDIVIDUAL, KEVIN GREENWALD, AN INDIVIDUAL, BARBARA ANN SCHIESSLE, AN INDIVIDUAL, PEARL C. BLAHA, AN INDIVIDUAL, ALVYDAS PAKARKLIS, AN INDIVIDUAL, MARCUS A. CHOKA, AN INDIVIDUAL, COMERICA BANK-ILLINOIS, FORMERLY NORTH SHORE NATIONAL BANK OF CHICAGO, T/U843, DATED JULY 9, 1984, UNKNOWN PRINCIPALS, UNKNOWN BENEFICIARIES, AND UNKNOWN OWNERS OF WALLY'S WORLD OF FUN, LTD., AND/OR HI SPEED BATTING CAGES-HI SPEED RACING, A FICTITIOUS ENTITY, AND/OR CHARLIE'S BLAZING WHEELS CO., SHOWMEN'S INSURANCE AGENCY, INC., AN ILLINOIS CORPORATION, STEPHEN BRODY, AN INDIVIDUAL, DAVID A. TAYNOR & ASSOCIATES, INC., AN ILLINOIS CORPORATION, AND DAVID A. TAYNOR, INDIVIDUALLY, DEFENDANTS, AND MICHAEL A. SCHIESSLE, AN INDIVIDUAL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Rosaland Crandall, Judge Presiding.

As Corrected May 3, 1996.

The Honorable Justice Cerda, delivered the opinion of the court: Rizzi, P.j., and Tully, J., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA, delivered the opinion of the court:

Defendant Michael H. Schiessle appeals from the entry of default judgment in favor of plaintiff, Bruce Harris, as next friend and guardian of Rachel Harris, a minor. Defendant argues that the trial court erred in not quashing the summons served by substitute service, in finding that defendant's filing of a motion for a protective order was a general appearance, and in entering a money judgment without proof of damages. We reverse and remand.

The issue in this case is whether a defendant, who has filed a special appearance and motion to quash service of summons, waives objection to the jurisdiction of the court when he makes a motion for a protective order to prohibit plaintiff from attempting to serve defendant during a hearing on the motion to quash.

Plaintiff filed a personal injury complaint on April 30, 1993, a first amended complaint on June 3, 1993, and a third amended complaint on January 21, 1994. Michael Schiessle was a defendant to counts I and IV. Count I for negligence was based on a go-cart accident in which plaintiff's 13-year-old daughter was injured.

An affidavit of a special process server swore that Schiessle was served with a summons and complaint by leaving a copy of each at his home with Schiessle's wife on July 25, 1993.

On September 9, 1993, Schiessle filed a special and limited appearance. Schiessle's swore in an affidavit that he had not been served and had not lived with his wife during any period subsequent to the date of the alleged injuries.

On September 30, 1993, plaintiff moved for an order of default and judgment against defendant Schiessle based on his failure to appear or to respond.

On December 3, 1993, Schiessle moved to quash summons and service on the basis that he did not reside with his wife when substitute service was effected.

On January 20, 1994, the trial court continued the motion to quash to March 10, 1994, and ordered that Schiessle be present.

On February 22, 1994, Schiessle filed a motion for the entry of a protective order to prohibit plaintiff from attempting to serve Schiessle during the hearing on the motion to quash. Schiessle alleged that plaintiff sent to defendant's attorney a notice to appear, that Schiessle's counsel requested assurance from plaintiff's attorney that he would not attempt to serve Schiessle with process during the March hearing, and that plaintiff's attorney refused to grant such assurance.

The trial court denied the motion for a protective order, denied the motion to quash, and found that the motion for a protective order waived any objections to the personal jurisdiction of the court. Schiessle ...


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