MR. JUSTICE BARDENS delivered the opinion of the court.
On November 13, 1944, plaintiff filed this suit against the two named defendants. The defendant Olive Wood was named in the complaint as Olive Woods. The complaint in substance alleged: that plaintiff had previously purchased from a third party a certain piece of real estate; that in order to pay the balance of the purchase price for said real estate he had borrowed the money from one J.M. Bridges, the father of defendant Olive Wood; that he thereupon had delivered to J.M. Bridges a warranty deed; that J.M. Bridges took possession of the property and collected the rentals of fifteen dollars a month therefrom; and that the rental collected was to be applied to the indebtedness evidenced by the warranty deed. The complaint also alleged that all of the indebtedness had been paid in full by the receipt of rentals and by a credit of fifty dollars worth of lumber which plaintiff delivered to J.M. Bridges. The plaintiff had requested J.M. Bridges, in his lifetime, and Olive Wood, since that time, to reconvey said property as promised, but these requests had been refused. The complaint then prays that Olive Wood, the only heir at law of the said J.M. Bridges, be compelled to convey by good and sufficient deed the said property to the plaintiff and that a full accounting be made. In addition, there is a prayer for general relief. The defendant T.E. Landy was a tenant in possession of said real estate and was made defendant for that reason.
Subsequently, on December 22, 1944, both defendants were defaulted and the cause was referred to the master in chancery who heard evidence and later made
In March, 1949, the defendant Olive Wood, under a limited appearance, filed a motion to vacate and expunge the decree of August 17, 1945.
In this motion, the defendant contended that the decree was void for two reasons; (1) that service by publication upon her had not been properly obtained in accordance with the statute; and (2) that the complaint stated a cause for specific performance and therefore the court had no jurisdiction of the subject matter. The decree, it may be noted, was entered prior to the amendment to Paragraph 14 of the Civil Practice Act, Chapter 110, Ill. Revised Statutes, 1949, Section 138 [Jones Ill. Stats. Ann. 104.014], wherein an action such as this one for specific performance was explicitly included. Upon hearing on the motion to vacate the decree, the circuit court, on August 20, 1949, allowed the motion and set aside the original decree. From this judgment setting aside the decree, the plaintiff, David Lakin, appeals.
In this case, jurisdiction of the defendant Olive Wood was dependent upon the provisions of Section 138 of Chapter 110, above cited. This section, so far as material to the present controversy, provides as follows:
"Whenever, in any civil action ... Plaintiff or his attorney shall file, in the office of the Clerk of the Court in which his suit is pending, an Affidavit showing that the Defendant resides or has gone out of this State ... so that process cannot be served upon him and
It appears from the record that the complaint, as above stated, was filed on November 13, 1944. The affidavit alleging nonresidence of the defendant Olive Wood was filed with the clerk on November 2, 1944. Under Paragraph 5 of the Civil Practice Act, Section 129 of Chapter 110 of the Illinois Revised Statutes, [Jones Ill. Stats. Ann. 104.005], it is provided that "every civil action, unless specifically provided otherwise, shall be commenced by the filing of a complaint." It becomes obvious, therefore, that this suit was not commenced until November 13, 1944, and that the affidavit of nonresidence was filed eleven days prior to the commencement of the suit. The record shows that the notice published in the newspaper first appeared on November 16, and appeared subsequently for three successive weeks. It recited that defendant Olive Wood had until the third Monday of December, 1944, to plead or answer. However, the following notation appears at the bottom of the notice and above the signature of the clerk: "Dated at Edwardsville, Illinois, this third day of November, 1944." This fact shows that the publication made was based upon the affidavit filed on November 2, 1944.
In our opinion, the filing of the affidavit of nonresidence eleven days before the suit was filed does not show a strict and literal compliance with the statute. Therefore, the court failed to obtain jurisdiction over the person of the defendant Olive Wood and its judgment of August 17, 1945, was void. The lower court, in setting aside and holding the decree of August 17, 1945, void, was entirely correct and should be affirmed.
SCHEINEMAN, P.J. and CULBERTSON, J., concur.