Phalen v. Groeteke

No. 3--97--0285
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1997

JOHN S. PHALEN, d/b/a ) Appeal from the Circuit Court
BY-RITE FURNITURE, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellant, )
)
v. ) No. 97--SC--1863
)
ERIC GROETEKE, ) Honorable
) Martin Rudman,
Defendant-Appellee. ) Judge, Presiding.
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JUSTICE SLATER delivered the opinion of the court:
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The plaintiff, John Phalen, d/b/a By-Rite Furniture, filed a
small claims action against the defendant, Eric Groeteke. The
circuit court of Will County found that it did not have personal
jurisdiction over the defendant because the plaintiff had failed
to comply with Will County local rule 10.01(a)(2). 12th Judicial
Cir. Ct. R. 10.01 (eff. July 1, 1986). The plaintiff appeals,
and we reverse and remand.
The record indicates that this case was filed in Will County
on February 6, 1997. The court issued a summons which had a
return date of February 19, 1997. The defendant apparently did
not receive the summons, and the trial court issued an alias
summons on February 19, 1997. The alias summons had a return
date of March 19, 1997. On that day, the plaintiff appeared in
court and requested that the case be continued until March 26,
1997, for proof of service. The continuance was granted. On
March 26, 1997, the defendant did not appear in court. The
plaintiff presented an affidavit stating that the summons was
served on the defendant on March 16, 1997, three days before the
alias return date of March 19, 1997.
The trial court indicated that the service of summons did
not comply with local court rule 10.01(a)(2) and therefore the
defendant had not been properly served. Rule 10.01(a)(2)
requires that in small claims cases, a summons may not be served
later than five days before the date of appearance. The
plaintiff argued that this rule conflicted with Supreme Court
Rule 101(b) and was therefore invalid. Official Reports Advance
Sheet No. 5 (February 28, 1996), R. 101(b), effective February 1,
1996. Supreme Court Rule 101(b) states that in cases for money
damages of $50,000 or less, the summons may not be served later
than three days before the day for appearance. 134 Ill. 2d R.
101(b). The trial court found that the rules were not in
conflict. Therefore, it held that it did not have jurisdiction
over the defendant because he had not been properly served.
On appeal, the plaintiff argues that the trial court erred
when it held that no conflict existed between local rule
10.01(a)(2) and Supreme Court Rule 101(b).
Illinois Supreme Court Rule 21(a) vests circuit courts with
the power to adopt local rules governing civil and criminal cases
as long as: (1) they do not conflict with supreme court rules or
statutes; and (2) so far as practical, they are uniform
throughout the State. 134 Ill. 2d R. 21(a). A reviewing court
will not interfere with the trial court's exercise of its
authority under local rules in the absence of facts constituting
an abuse of discretion. Salazar v. Wiley Sanders Trucking Co.,
216 Ill. App. 3d 863, 576 N.E.2d 552 (1991).
Under Illinois Supreme Court Rule 101(b), a plaintiff in a
case involving less than $50,000 in damages has timely served a
defendant if the summons was served at least three days before
the date of appearance. Official Reports Advance Sheet No. 5
(February 28, 1996), R. 101(b), effective February 1, 1996.
However, in Will County, service on the third day before the date
of the appearance is invalid. 12 Judicial Cir. Ct. R.
10.01(a)(2) (eff. July 1, 1986). Will County's additional two-
day requirement impermissibly imposes a greater burden on
plaintiffs than that required by Supreme Court Rule 101. People
ex rel. Brazen v. Finley, 119 Ill. 2d 485, 519 N.E.2d 898 (1988).
In addition, the Will County rule promotes inconsistency in the
State concerning the time frame for proper service, which also
violates Supreme Court Rule 21(a). 134 Ill. 2d R. 21(a). For
these reasons, we find that Will County local rule 10.01(a)(2) is
invalid. Therefore, we find that the defendant was properly
served and the trial court abused its discretion in finding that
it did not have personal jurisdiction over him. Accordingly, the
judgment of the circuit court of Will County is reversed and the
cause is remanded for further proceedings.
Reversed and remanded.
LYTTON, P.J., and BRESLIN, J., concur.