Burton v. Autumn Grain Transport, Inc. ( 1991 )

PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs Vivian Burton’s and Ethel Regulus’ complaint against defendants Gaylon Nagle and Autumn Grain Transport charged that they negligently caused the plaintiffs personal injuries and property damage as the result of an automobile accident. On November 20, 1989, the circuit court denied Nagle’s motion to quash service of process over him, overruling his argument that because the plaintiffs did not file with the clerk of the circuit court an affidavit that they had complied with statutory service requirements, the court had no basis for determining whether he had been properly served, and also that service was defective because plaintiffs mailed the summons to him by certified mail, as opposed to registered mail. On December 26, 1989, the court granted plaintiffs’ motion to hold Nagle in default, overruling his contention that because service was defective, the court had no jurisdiction to enter such an order. On December 27, 1989, Nagle filed an appeal from those orders. On January 12, 1990, the circuit court entered a default judgment against Nagle for $25,300, which he claims, on appeal, was improper because service was defective and because his appeal from the prior orders was pending at the time judgment was entered, and that, therefore, the court had no jurisdiction to enter that judgment. Even if the court had jurisdiction, Nagle argues, plaintiffs failed to notify him of certain motions they filed and of a trial court order, which is itself not at issue in this appeal.

We first consider our jurisdiction to review the trial court’s orders of November 20, 1989, and December 26, 1989. An order denying a defendant’s motion to quash service of summons is neither a final judgment nor an appealable interlocutory order. (People ex rel. Department of Mental Health v. Brown (1968), 96 Ill. App. 2d 355; Thomas v. Ritholz (1941), 310 Ill. App. 166, 167-68.) Furthermore, “[a]n order of default does not dispose of the merits of the case and determine the rights of the parties. It is not, therefore, a final judgment” (Kazubowski v. Kazubowski (1971), 48 Ill. 2d 401, 402), and is not an interlocutory order appealable as of right under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)). Accordingly, Nagle’s appeal from those orders is dismissed.

He does, however, properly appeal from the January 12, 1990, default judgment. (See Braglia v. Cephus (1986), 146 Ill. App. 3d 241, 244; Barrow v. Robinson (1961), 28 Ill. App. 2d 358, 361.) Section 10 — 301 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 10 — 301(b)) provides that service of process in an action against a nonresident of Illinois growing out of his operation of a vehicle on our highways, resulting in damage or loss to person or property, may be had if notice of the filing óf a copy of such service in the office of the Secretary of State and a copy of the process are “sent by registered mail by the plaintiff to the defendant, at the last known address of the defendant, and the plaintiff’s affidavit of compliance [with the statute] is appended to the summons.”

Nagle claims that a copy of plaintiff’s counsel’s affidavit of compliance was not filed with the clerk, and that, therefore, the trial court had no basis for determining whether the plaintiffs had complied with section 10 — 301. The plaintiffs respond that the record shows that the trial judge had before him a copy of the affidavit. We agree with plaintiffs; the record shows that the trial court had a copy of the affidavit in its possession and was thereby able to determine whether plaintiffs had complied with the requirements of section 10 — 301.

We do not agree, however, with the trial court’s finding that these requirements had been met. Plaintiffs concede that they sent the summons to Nagle by certified mail. They maintain, however, that their failure to comply with the requirements of the statute should be excused because paragraph 911.1.14(b) of the United States Post Office Domestic Manual (Manual) prohibits the sending of registered mail to a post office box, and that because a post office box was Nagle’s last known address, service through certified mail was proper, especially since Nagle was actually aware of the suit against him.

Plaintiffs’ argument is groundless. The postal regulation they cite states that “Mail will not be registered if: *** Addressed to post offices to which it cannot be transported with safety.” There is nothing in the record of this case which would suggest that the summons could not be transported safely by registered mail to the post office in Delavan, Minnesota, to which it was addressed. In addition, when registered mail is held by the post office, as is the case when it is sent to a post office box, the box holder receives a notice in his box and is required to sign for the mail upon claiming it from postal employees. (See paragraphs 911.41 and 911.42 of the Manual.)

Plaintiffs’ reliance on Olin Corp. v. Bowling (1981), 95 Ill. App. 3d 1113, is unwarranted. The court in Olin held that plaintiffs who were required by section 6 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 269) to serve 3,801 defendants by registered mail could instead serve them “by certified mail, return receipt requested,” noting a difference in costs to the plaintiffs of $9,692.55, finding that certified mail with return receipt requested was “ ‘the functional equivalent of registered mail for court purposes’ [citation], especially when that mail need only be sent to ‘the last known place of residence *** of each such defendant’ [citation],” and citing the interests of “[ justice *** [and] judicial economy.” (95 Ill. App; 3d at 1115-17.) There is no claim that any extraordinary burden was placed on the plaintiffs in the case at bar or that any return receipt was ever requested by them. We therefore decline to extend the holding in Olin to read into section 10— 301 of the Code that which it does not hold.

Directly on point, however, is the case of Johnson v. Burken (7th Cir. 1991), 930 F.2d 1202. In Johnson, an absentee motorist defendant was served by certified mail, return receipt requested, rather than by registered mail as required by section 10 — 301 of the Code. Although the Secretary of State was “duly served” (930 F.2d at 1204), the defendant “did not receive his copy, having failed to leave a forwarding address.” (930 F.2d at 1204.) The court held:

“In Olin Corp. v. Bowling, 95 Ill. App. 3d 1113, *** (1981), the Illinois Appellate Court allowed the plaintiff in a class action to use certified mail to serve the 3,801 members of the defendant class in order to save the plaintiff the added cost of registered mail ***. But however elastic the statute may be to interpretation, it cannot be stretched to embrace a garden-variety case of attorney error, which is all that is involved in this case. For then we would simply have substituted ‘certified’ for ‘registered’ mail in the statute, since every rational plaintiff’s lawyer would use the cheaper and less certain form of mailing if he were permitted to do so. We are not devotees of literal interpretation; but only a court with a power of statutory revision could equate ‘certified mail’ to ‘registered mail' in a case in which (unlike Olin Corp.) there was no possible argument that the legislature had failed to anticipate a situation in which literal compliance with the statute would be unduly, perhaps senselessly, burdensome.” Johnson, 930 F.2d at 1206-07.

Bultman v. Bishop (1984), 120 Ill. App. 3d 138, cited in the dissent in this case, like Olin, is distinguishable. In Bultman, suit was brought by the purchasers of certain securities to void their sale on the ground that they had not been registered and no report of the sale had been filed as required by the Illinois Securities Law, which made such a sale voidable at the election of the purchaser upon his giving notice “by registered letter.” In holding that “the use of certified mail, return receipt requested was the functional equivalent of the ‘registered letter’ required by the statute” (120 Ill. App. 3d at 142), the court took particular note, more than once, of the fact that the defendants “received all the mailed materials as evidenced by the signed receipts for the certified letters,” citing Olin. (Emphasis added.) (Bultman, 120 Ill. App. 3d at 141.) In personam jurisdiction was not in any way involved in Bultman; moreover, there is no evidence in the case at bar of signed receipts for the certified mail. Indeed, the record is clear that plaintiffs mailed the summons to Nagle simply by certified mail, without a return receipt being requested, and the record also shows that the mail was returned to them undelivered.

Stratton v. Wenona Community Unit District No. 1 (1990), 133 Ill. 2d 413, another case relied upon by the dissent, is also inapposite to the case at bar, for there, a letter required by the School Code to be sent to the plaintiffs by “registered or certified mail” was instead delivered by hand. It bears repeating that in the case sub judice the record unequivocally reflects that plaintiffs’ notice to defendant was returned to them undelivered, and, as in Bultman, in personam jurisdiction was not the issue in Stratton.

In citing People ex rel. Loeser v. Loeser (1972), 51 Ill. 2d 567, the dissent overlooks that there the wife in a divorce proceeding brought by her husband in Indiana while she was residing in Illinois was held to be properly before the Indiana court in the divorce case inasmuch as she had been served pursuant to the Indiana “long arm” statute, which provided for service on an absentee defendant by “sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter.” (Loeser, 51 Ill. 2d at 571.) The Illinois Supreme Court held that since the wife had been served as required by the Indiana statute, “due process does not require precise compliance with the allegedly more stringent requirements of the Illinois statute and the rules of this court,” in the Illinois habeas corpus proceeding involving a child custody dispute between the parties. (Loeser, 51 Ill. 2d at 572.) We face no such conflict of laws problem in the instant case; accordingly, we are not required to choose the method of one jurisdiction over another regarding the proper method of serving process on absentee defendants. In Loeser there was no issue as to whether the Illinois resident had been served in the divorce action in accordance with Indiana law, the law adjudged by our State supreme court to have been the proper one to follow.

It is particularly worthy of note that our General Assembly demonstrates itself to be singularly cognizant of the difference between certified and registered mail and is quite capable of employing either or both wherever, in its best judgment, those terms are deemed necessary to be specified. We already know that registered mail is indicated in section 10 — 301 of the Code. Yet in section 24— 11 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24 — 11), for example, the General Assembly requires school boards, in extending the probationary period of teachers, to serve them notice thereof by “certified mail, return receipt requested.”

Still yet, in section 10 — 22.6 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 10 — 22.6), school boards, in expelling pupils, are required to request parents to appear at a meeting with the board, and such request is to be “made by registered or certified mail.” (Emphasis added.) Other examples abound in our statutes; all of which goes to show that if the legislature had wanted service under section 10 — 301 of the Code to be effected by certified mail it would not specify, as it does, that process must be achieved by registered mail. We agree with the Seventh Circuit’s observation that “only a court with a power of statutory revision could equate ‘certified mail’ to ‘registered mail’ in a case in which (unlike Olin Corp.) there was no possible argument that the legislature had failed to anticipate a situation in which literal compliance with the statute would be unduly, perhaps senselessly, burdensome.” Johnson, 930 F.2d at 1207.

Because Nagle never entered a general appearance, his actual knowledge of the proceedings, which would always exist when a defendant makes a special appearance in order to move to quash service of summons, did not serve to dispense with the statutory requirements by which he was to be served with process. See Meldoc Properties v. Prezell (1987), 158 Ill. App. 3d 212, 215-16; Giralamo v. O’Connell (1986), 145 Ill. App. 3d 527, 528-29.

Consequently, we hold that the trial court erred in holding that Nagle had been properly served and that it therefore had no jurisdiction to hold him in default or to enter judgment against him. Accordingly, Nagle’s remaining claims of error need not be addressed.

The judgment of the trial court in appeal No. 1 — 90—0413 is therefore reversed.

No. 1 — 90—0006, Dismissed.

No. 1 — 90—0413, Reversed and remanded.

DiVITO, J., concurs.