Miller v. Town of Cicero

590 N.E.2d 490, 225 Ill. App. 3d 105, 168 Ill. Dec. 853
CourtAppellate Court of Illinois
DecidedJanuary 24, 1992
Docket1-89-3475
StatusPublished
Cited by14 cases

This text of 590 N.E.2d 490 (Miller v. Town of Cicero) 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
Miller v. Town of Cicero, 590 N.E.2d 490, 225 Ill. App. 3d 105, 168 Ill. Dec. 853 (Ill. Ct. App. 1992).

Opinion

JUSTICE GORDON

delivered the opinion of the court:

Plaintiff Carolyn D. Miller filed a personal injury action against defendants, the Town of Cicero, the Village of Stickney and the County of Cook. The trial court entered a default judgment against the Village of Stickney. Stickney sought to quash service and vacate the default judgment. The trial court denied the motion, and Stickney appeals. The other defendants are not parties to this appeal.

On February 19, 1982, plaintiff filed a personal injury action after she collided with a concrete platform in the center of Pershing Road at the intersection where the towns of Cicero and Stickney meet. Count II sought damages against Stickney, alleging that Stickney had control of the portion of Pershing Road where the accident occurred. Attached to the complaint as exhibit 2 is a statutory notice of accident form to Arthur Rawers, clerk of the Village of Stickney. The space indicating receipt by the village clerk is blank.

The summons was issued on February 19, 1982. It included the following directions: “Sheriff, please serve: *** Village of Stickney, Village of Stickney Administration Building,” and a street address in Stickney.

On February 26, 1982, a deputy sheriff, Jerry Geraci, left a copy of the summons with Lillian Rotrekl, an employee in the office of the Stickney village clerk. The return states that Geraci served the summons “[b]y leaving a copy with Lillian Rotrekl, agent of said defendant.”

On May 11, 1982, the trial court granted Cook County’s motion to quash service on the basis that service was made on the superintendent of highways, and not on the chairman of the county board or the county clerk as required by statute. On June 9, 1982, Cook County was re-served at the clerk’s office, and Cook County filed a general appearance in the action on July 9,1982.

On August 18, 1982, the trial court entered a default judgment against Stickney. A notice of the motion for entry of the default judgment was mailed to “Village of Stickney” on July 30,1982.

On April 11, 1984, Cook County filed a motion for summary judgment on the basis that it did not control Pershing Road and instead it was built and maintained by the Illinois Department of Transportation.

On June 15, 1984, Cicero filed a motion for summary judgment on the same basis. On the same day, Cicero was given leave to withdraw the motion for summary judgment without prejudice.

On June 15, 1984, the trial court entered an order granting the County of Cook’s motion for summary judgment, dismissing the case against the County of Cook with prejudice.

On December 20, 1984, after prove up, the court entered a default judgment against Stickney in the amount of $25,000 plus costs.

On January 31, 1985, pursuant to stipulation, the court entered an order dismissing the Town of Cicero with prejudice and providing that the cause continue as to Stickney.

On February 2, 1987, plaintiff attempted to serve a citation to discover assets on Stickney. The returns on this citation, and several other citation forms, show that service was not made. The reasons are not specified.

On March 13, 1987, Mary Ellen Prerost, the deputy clerk of Stickney, accepted service by mail of plaintiff’s citation to discover assets. Stickney did not appear at the March 23, 1987, hearing, and the matter was continued.

On April 6, 1987, Rotrekl accepted service from a deputy sheriff of another citation to discover assets. Stickney did not appear at the April 27, 1987, hearing, and the matter was again continued.

On June 12, 1987, Prerost accepted service by certified mail of another citation to discover assets. Stickney did not appear at the July 1, or July 10, 1987, hearing, and the matter was continued once again, in order for plaintiff to serve a properly elected official pursuant to Supreme Court Rule 277(c)(3) (134 Ill. 2d R. 277(c)(3)).

On July 13, 1987, the mayor of Stickney and the clerk of Stickney were served with a citation to discover assets.

On July 31, 1987, the court found that proof of service was “apparently” made on the mayor and the village clerk of Stickney. The court found that defendant Stickney had once again failed to appear, and it issued a rule to show cause why the mayor and village clerk should not be held in contempt for failing to appear in court on the citation to discover assets.

On August 31, 1987, Stickney filed a special and limited appearance to object to personal jurisdiction, and a motion to quash service of summons and vacate the default judgment. Stickney attached the affidavit of Prerost, stating that in February 1982 Rotrekl was not authorized to accept service of summons on behalf of Stickney, and was not the president, village clerk or deputy clerk of Stickney.

On September 10, 1987, plaintiff moved to strike the affidavit of Prerost. The court denied the motion, but granted leave to depose Rotrekl and Prerost.

On March 31, 1989, the depositions of Rotrekl, Prerost, and Village Clerk Arthur Rawers were taken by plaintiff.

Rotrekl testified at her deposition that in February 1982 she held the position of “office clerk” for the village of Stickney. Prerost, the treasurer, deputy clerk and office manager, was Rotrekl’s supervisor. Rotrekl’s duties included answering telephones, “taking care of the [customer] window, the water department, licensing and miscellaneous duties.”

Rotrekl did not recall whether she was at work on February 26, 1982, or whether she had accepted legal process. She testified, however, that she was not authorized as part of her duties of employment with the village to accept legal papers on behalf of the village. She did not know who was authorized to accept service. She “probably” accepted legal papers on behalf of the city at various times. If she had accepted any papers, they “would have been just laid on Mary Ellen[’s] desk, not even looked at, just laid there because it was not my responsibility.”

Prerost testified at a deposition that at the relevant time she held the positions of treasurer, collector and deputy clerk for the village of Stickney. As deputy clerk, her responsibilities were “[t]o assist the village clerk in any way I ha[d] to.” Prerost did not recall the service of summons relating to the present case.

Prerost testified further that the village clerk was authorized to accept service of legal process, but “[i]n his absence, I would be.” There was no document which authorized Prerost to accept service of summons. The authorization was “[j]ust an accepted fact.” She continued: “Everybody that work[ed] in the office” knew it, including Rotrekl. Prerost never advised Rotrekl that they were not authorized to accept service of summons. There were no circumstances whatsoever under which Rotrekl was authorized to accept service.

Prerost also testified, however, that there were no circumstances trader which she would have objected to office personnel accepting service of summons.

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Cite This Page — Counsel Stack

Bluebook (online)
590 N.E.2d 490, 225 Ill. App. 3d 105, 168 Ill. Dec. 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-town-of-cicero-illappct-1992.