Alsobrook v. Cote

273 N.E.2d 270, 133 Ill. App. 2d 261, 1971 Ill. App. LEXIS 1693
CourtAppellate Court of Illinois
DecidedJune 2, 1971
Docket54128
StatusPublished
Cited by33 cases

This text of 273 N.E.2d 270 (Alsobrook v. Cote) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alsobrook v. Cote, 273 N.E.2d 270, 133 Ill. App. 2d 261, 1971 Ill. App. LEXIS 1693 (Ill. Ct. App. 1971).

Opinion

Mr. JUSTICE BURMAN

delivered the opinion of the court:

The sole issue presented in this appeal is whether the uncontroverted affidavits submitted by the plaintiff, George Alsobrook, show that he exercised reasonable diligence to obtain service of process upon the defendant, Margaret Cote.

The plaintiff was injured in an automobile accident which occurred on December 19, 1963. He filed this action on December 16, 1965, three days before the statute of limitations was about to run on his cause of action. Summons was taken out directing the Sheriff of Cook County to serve the defendant at 1806 North Mobile, Chicago, Illinois, but this summons was returned “not found.” Approximately two and one-half years later, on June 25, 1968, an alias summons was issued directing the Sheriff to serve the defendant at 3510 North Paulina, Chicago. The defendant was served and promptly moved to dismiss the action on the ground that the plaintiff had failed to use due diligence in obtaining service upon her. In the motion she stated that she had no file available concerning the accident and that it would be impossible for her at that time to marshal evidence to present an adequate defense.

Plaintiff, by his attorney, filed an affidavit in opposition to the motion to dismiss on December 15, 1968. Plaintiff’s counsel stated therein that he had been diligent in his efforts to serve summons on the defendant and that he had sought to locate her (1) through correspondence with the Secretary of State, Vehicle Registration Division, (2) through correspondence with the County Clerk, Marriage License Division, and (3) by inspection of the Chicago area telephone directories for the years 1966, 1967, and 1968. This affidavit was struck by order of Court, but leave was granted to file other affidavits and/or documents.

On March 17, 1969, the plaintiff filed an amended affidavit, two additional affidavits, and two exhibits. These affidavits and exhibits in combination indicate that the following steps were taken to locate and serve summons upon the defendant:

(1) On December 16, 1965, plaintiff's attorney directed the Sheriff to serve the original summons upon the defendant at her address as indicated in the December, 1963, police accident report; but the summons was returned “not found;”

(2) In March, 1966, a member of the law firm representing the plaintiff visited the address indicated in the police report, found that the defendant's name did not appear on any mailbox, and was advised that she had moved to an unknown address;

(3) On July 1, 1966, a letter was sent to the Secretary of State, Auto Registration Division, concerning the defendant’s address and any license plates issued to her, but the Secretary of State had no 1965 or 1966 registration for her car;

(4) On August 1, 1966, a letter was sent to the County Clerk, Marriage License Division, to determine whether the defendant had changed her name by marriage, but the County Clerk had no record of a marriage involving the defendant;

(5) In 1966 through 1968, a law clerk for the firm representing the plaintiff examined the Chicago area telephone directories.

Plaintiff's efforts were fruitless until June, 1968, when the law clerk found the defendant’s address in the Chicago telephone directory and an alias summons was served.

The trial judge, after considering the affidavits and exhibits submitted, and after hearing arguments, found that the plaintiff had not made a showing of reasonable diligence, and dismissed the action.

Supreme Court Rule 103 (b) (Ill. Rev. Stat. 1967, ch. 110A, par. 103 (b) ), provides:

“Dismissal for lack of Diligence. If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed with or without prejudice on the application of any defendant or on the court’s own motion.”

The purpose of this rule is to protect defendants from unnecessary delays in the service of process upon them (Karpiel v. La Salle National Bank of Chicago, 119 Ill.App.2d 157, 255 N.E.2d 61), and to safeguard against the undermining and circumvention of the statutes of limitation. (Kohlhaas v. Morse, 36 Ill.App.2d 158,183 N.E.2d 16.) The Rule does not set a specific time limitation within which a defendant must be served, but it does put the burden upon the plaintiff to show that he has exercised reasonable diligence to obtain service. Mosley v. Spears, 126 Ill.App.2d 35, 261 N.E.2d 510.

There is no fixed rule or absolute standard which can be universally applied to determine whether a plaintiff has exercised reasonable diligence to obtain service; each case, of necessity, must be judged and evaluated on its own peculiar facts and circumstances. Courts, however, in making a determination have looked to a number of factors including: (1) the length of time used to obtain service of process (Kohlhaas v. Morse, 36 Ill.App.2d 158, 183 N.E.2d 16); (2) the activities of the plaintiff (Felton v. Coyle, 66 Ill.App.2d 4, 214 N.E.2d 359, Davis v. Anthony, 67 Ill.App.2d 226, 214 N.E.2d 603); (3) any knowledge on the part of the plaintiff of the defendant’s location (Karpiel v. LaSalle National Bank of Chicago, 119 Ill.App.2d 157, 255 N.E.2d 61, Mosley v. Spears, 126 Ill.App.2d 35, 261 N.E.2d 510); (4) the ease with which the defendant’s whereabouts could have been ascertained (Caliendo v. Public Taxi Service, Inc., 70 Ill.App.2d 86, 217 N.E.2d 369, Harvey v. Lippens, 87 Ill.App.2d 363, 231 N.E.2d 613); (5) the actual knowledge by the defendant of the pendency of the action as the result of ineffective service (Hahn v. Wiggins, 23 Ill.App.2d 391, 163 N.E.2d 562, De Cicco v. Reed, 77 Ill.App.2d 349, 222 N.E.2d 346); and (6) special circumstances which would affect the efforts made by the plaintiff. Hahn v. Wiggins, 23 Ill. App.2d 391, 163 N.E.2d 562.

In the present case, the defendant did not learn about the pendency of the action or receive service of summons until four and one-half years after the occurrence, and until two and one-half years after the statute of limitation would have run had the action not be filed.

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Bluebook (online)
273 N.E.2d 270, 133 Ill. App. 2d 261, 1971 Ill. App. LEXIS 1693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alsobrook-v-cote-illappct-1971.