Haj v. American Bottle Co. , 261 Ill. 362 ( 1913 )

Mr. Justice Cartwright

delivered the opinion of the court:

Adam.Rabi Haj, a boy under the age of twenty-one years, had a claim against the appellant, the American Bottle Company, for damages on account of a personal injury received while employed by it, and on March 19, 1912, he and his father, Sam Haj, entered into a written contract with the appellee, James J. Conway, by which it was agrefed that the appellee should institute and prosecute a suit, and in case of recovery should receive for his fees one-third of any judgment that might be collected or one-third of any amount which would be received in settlement. The .next day the appellee commenced a suit in the circuit court of LaSalle county in the name of the minor, by his father as next friend, against the appellant, as he had agreed to do. A settlement was agreed upon between the appellant and the minor and his next friend, and the parties went to Ottawa for the purpose of completing the settlement in the court. The appellee was sent for but could not be found, as he was absent from the State. A jury was empaneléd and for the purpose of the settlement some evidence was heard, and there was a verdict for the plaintiff for $1000, on which judgment was entered, and it was paid. During the same term the appellee filed his petition claiming a lien upon the judgment for one-third of the amount in payment for his legal services'. The court found that -he was entitled to the lien and entered judgment against the appellant for $333.33. The judgment of the circuit court was affirmed by the Appellate Court for the Second District, and that court granted a certificate of importance and an appeal to this court.

On the hearing of the petition the appellee proved that he sent a written notice from Ottawa to the appellant at Streator, where it was located, by mail, enclosed in an envelope properly stamped and addressed and postage prepaid, on the day the contract was made. The evidence for the appellant was that no one was authorized to receive or open mail for it except the president, the superintendent and a book-keeper employed in the office to assist the president, and they all testified that they never received the letter. If the letter was received or was not, it is a question of law whether service of notice by mail is a compliance with the statute.

The act creating attorneys’ liens and for enforcement of the same provides for a lien for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee: “Provided, however, such attorneys shall serve notice in writing upon the party against whom their clients may have such suits, claims or' causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes Of action.” (Laws of 1909, p. 97.) In Carney v. Tully, 74 Ill. 375, where the question was whether the plaintiffs had brought themselves within the provisions of the Mechanic’s Lien statute, which provided that the party claiming a lien should cause a notice to be served upon the owner, lessee or his agent, the court said: “Service of a written notice always means .actual, personal service.” In Chicago and Alton Railroad Co. v. Smith, 78 Ill. 96, where the validity of a notice was in question, the court said: “When a notice is required and the mode of service is not specified, the law requires that it shall be personal.” In Wade on Law of Notice the author says (sec. 1334) : “In general, however, where notice is required by statute or rule of court and the method of serving the same is not laid down, it is understood that there shall be personal service.” And again (sec. 1342) : “We have seen that when the manner and mode of service is not pointed out by the statute, personal service is generally understood.” In Wilson v. Lowmaster, 181 Ill. 170, it was a question whether notice had been properly served under a statute requiring three months’ notice to the executor or administrator or heirs of-a deceased judgment debtor of the existence of a judgment or decree before issuing execution or proceeding to' sell. It was held that the notice to one of the resident heirs was insufficient, and the court said: “Under the statute no.execution could issue until written notice had been given to her, as she resided in this State. The service of this notice should have been personal,” — citing Chicago and Alton Railroad Co. v. Smith, supra. That decision was not departed from in Kinkade v. Gibson, 209 Ill. 246. The case arose under the same statute- requiring notice to the administrator, executor or heirs, and the court said: “The statute does not specify a different mode of service of the notice, and therefore it must be personal,” — again citing Chicago and Alton Railroad Co. v. Smith. It was held that the evidence that the notice was mailed was not sufficient, but the administrator received a notice and took it to the attorney who sent it, and the attorney explained it to him. That was held to be a compliance with the statute as personal service. That decision is not authority for saying that the mailing of a notice is sufficient if the notice is received. In the Encyclopedia of Pleading and Practice (vol. 19, p. 614,) the author of the chapter on Service of Process and Papers says': “The general rule in regard to the service of process or legal notice is, that it must be served personally on the party or the 'individual in question, unless some other mode is specially provided for that purpose by statute or has been otherwise established by long and recognized practice to the contrary.” In 29 Cyc. 1119, it is said: “Where a statute directing notice to be given is silent as to the manner of giving it, personal service is necessary.” In the American and English Encyclopedia of Law (vol. 21, 2d ed. p. 583,) the rule is stated as follows: “Where a statute requires the giving of notice and there is nothing in the context of the law or in the circumstances of the-case to show that any other notice was intended, personal notice must always be given.”

There are statutes which authorize giving notice by mail, and that method being .provided, a compliance with the statute is sufficient. (Bickerdike v. Allen, 157 Ill. 95.) There are also situations where there is no statute,- and in order to relieve, .a. party from further liability, .as" in the case of =the dissolution of a partnership or withdrawal of.--a member, the-la.w requires notice to persons who have been dealing'with - the ■ firm, and in such a case proof of notice by mail' is .prima facie evidence that the notice "has been received,- but the presumption may be rebutted. (Meyer v. Krohn, 114 Ill. 574; Young v. Clapp, 147 id. 176.) Decisions under statutes prescribing notice by mail or where there is no statute requiring any notice can have no influence in the decision of this case. The statute creating the attorney’s lien creates a liability unknown before the passage of the act, and where that is the case the statute must be strictly followed. It requires notice, differing in that respect from the statute in New York and perhaps other States, and as it specifies no other method of service, personal service, under all the authorities, is required. The appellee not having complied with the statute creating the lien is not entitled to one.

The judgment of the Appellate Court and the order of the circuit court are reversed and the cause is remanded to the circuit court. , , , ,

D , Reversed and remanded.