Under the Illinois Code of Civil Procedure §2-203.1 “Service by Special Order of Court” is allowed if it is impractical to serve someone (a defendant) at his or her place of abode. In that case, the court can direct a comparable method of service in any manner consistent with the process.
A motion to serve someone under Section 2-203.1 requires the movant to provide an affidavit that includes a specific statement that a “diligent inquiry as to the location of the individual” was made. Failure to make a diligent inquiry can result in improper service.
In the case of Sutton v. Ekong, a default judgment was entered in the amount of $199,998.32 because the defendant had defaulted after allegedly been served properly through the Secretary of State of Illinois. Many attempts had been made on the defendant to serve him with summons at his home and by use of a special process server without success. After failing to appear in court, the plaintiff then served the defendant through the Illinois Secretary of State. The court allowed this after the plaintiff asked the trial court for process of service in that fashion.
Before the default of defendant in the Sutton case, the plaintiff’s attorneys spoke with the defendant and advised him to appear in court. The defendant said he did nothing wrong and he chose not to go to court. A default hearing was held. It was then that a prove-up ended in a default judgment against the defendant. The plaintiff’s counsel attempted to collect the judgment through a citation to discover assets. Finally the defendant filed his appearance.
In the Sutton case, the plaintiff had tried to serve the defendant at home six times. The person answering an intercom at the defendant’s address told the special process server to go away. Another time, the person on the intercom said the defendant was not at home and that he would not come to the front door. The process server spoke with a neighbor who said that the defendant was home frequently. The plaintiff’s attorney mailed a copy of the complaint to this address. It was after all of these attempts that the plaintiff’s counsel asked the court to serve the defendant through the Secretary of State. The court stated that “while this case is dissimilar from an Illinois Supreme Court, in that here plaintiff did not know [the defendant’s] business address at the time she attempted to serve him . . .had the plaintiff conducted a diligent inquiry in this case, she likely would have discovered [the defendant’s] easily obtainable business address.” Thus the court concluded that the plaintiff was not diligent and the special service was improper.
Without diligence, there was no proper service. Without effective service, the court never had personal jurisdiction over the defendant. The default judgment was therefore void ab initio, the court concluded, void from the beginning. The court vacated the default judgment.
In one of the cases that Kreisman Law Offices handled, a Missouri truck driver was alleged to have caused a downstate Illinois truck-car accident. The plaintiff in that case was suing for property damage only, but never attempted to serve the out-of-state (Missouri resident) defendant by proper service, but instead used the Illinois Secretary of State to serve him. Our client never knew that he was served in this fashion (by serving the secretary of state) and a default judgment was entered against him. When Kreisman Law Offices moved to vacate the judgment, the court allowed it and the matter was set for trial. When our client appeared with Robert Kreisman in court, the plaintiff quickly dismissed the case with prejudice knowing full well that neither the complaining witness was present, nor did he have credible facts that would prove that our Missouri truck driver client was at fault. This was an abuse of this special service of process and was not a last resort, but a device to default an innocent defendant.
Sutton v. Ekong, 2013 IL App (1st) 121975.
Kreisman Law Offices has been handling truck accident cases, automobile accident cases and catastrophic injury cases for individuals and families who have been injured or killed by the negligence of another for more than 38 years in and around Chicago, Cook County, and its surrounding areas, including Berwyn, Mount Prospect, Palos Hills, Palatine, Homewood, Highwood, Highland Park, Lake Bluff, Orland Park and Rosemont, Ill.
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