This appeal concerns the granting of summary judgment in a suit brought to enforce a default judgment rendered by an Illinois state court.
The appellant (Podgorny) had secured from the appellee (Great Central) a surety bond assuring that Podgorny would pay to the Illinois Department of Revenue sales tax monies which might become due and owing. Podgorny defaulted in payment of the taxes, and the State of Illinois then collected from Great Central. In turn Great Central sued Podgorny in the Circuit Court of Cook County, Illinois, and secured a default judgment against him on July 23, 1971. Thereafter, suit was commenced in Indiana to enforce the Illinois judgment. The defense asserted by Podgorny is that he was never served with process in the Illinois suit and therefore the Illinois judgment is void.
Both parties moved for summary judgment. The trial court's order denying summary judgment to Podgorny and granting it, instead, to Great Central upon the record before it provides the dual basis for this appeal.
Before examining the specifics presented to the trial court by the parties, it is necessary to briefly review the status of a foreign judgment when suit is brought upon it in Indiana.
U.S.Const. art. I, § 4 requires that full faith and credit be given to the judicial proceedings of every other state. In addition, 28 U.S.C. § 1738 provides:
On the other hand, to ensure due process it is well recognized that a judgment rendered in one state can be collaterally attacked in a second state when the original court was lacking in jurisdiction of either the subject matter or the person. Williams v. North Carolina (1945), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Old Wayne Life Ass'n. v. McDonough (1907), 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345; Ulrey v. Ulrey (1952), 231 Ind. 63, 106 N.E.2d 793.
Furthermore, where a foreign judgment is collaterally attacked for want of jurisdiction, the defect need not appear on the face of the record. Old Wayne Mut. Life Ass'n. v. Flynn (1903), 31 Ind.App. 473, 68 N.E. 327.
As the United States Supreme Court stated in Old Wayne Life Ass'n. v. McDonough, supra:
It has also been repeatedly stated that the burden of undermining the decree of a sister state "rests heavily upon the assailant." Williams v. North Carolina, supra; Ulrey v. Ulrey, supra; Irons v. Irons (1961), 242 Ind. 504, 180 N.E.2d 105.
Thus, where it appears that the court is one of general jurisdiction there is generally a presumption, albeit rebuttable,
In the case before us jurisdiction is grounded upon the Illinois long-arm statute, and no question has been raised asserting a lack of jurisdictional basis. Neither has appellant asserted that the Illinois statutes providing for substituted service are lacking in due process so as to render the judgment void. The sole attack concerns whether service was effected.
If it was not, the judgment is not entitled to full faith and credit. McDonough, supra, 204 U.S. 15, 27 S.Ct. 236.
In making that determination, we must look to the law of the rendering state. If under the law of Illinois there was such a defect in process as to render the judgment void there, it is void here also. Kniffen v. Courtney (1971), 148 Ind.App. 358, 266 N.E.2d 72.
The rule is properly set forth in Restatement, Judgments, § 6, comments b, c and d, wherein it is stated:
Thus, comment b, § 8 of the same Restatement concludes:
The Illinois cases distinguish between those instances where the defendant is actually served and those where substituted service is employed. In Tomaszewski v. George (1953), 1 Ill.App.2d 22, 116 N.E.2d 88, the defendant attacked a default judgment previously entered on the basis that the judgment was void because, in contravention of Illinois requirements, (a) the deputy sheriff who served the return upon defendant's wife did not inform her of the contents thereof; (b) that service was had on the sidewalk by defendant's house and not at his normal place of abode; (c) that the deputy did not identify himself as a police officer; and (d) that defendant never received a copy of the summons in the mail. In holding that these allegations constituted a defense, the court stated:
Thus, in Wells v. Braxton (1967), 82 Ill.App.2d 354, 227 N.E.2d 137, the Illinois Appellate Court affirmed the action of the trial court in quashing process against the defendant, Braxton, where jurisdiction was based upon the long-arm statute and substituted service was employed. The court initially observed:
After analogizing the requirements to those adopted in a prior decision where service on a partnership had been voided upon an insufficient return,
The Illinois Civil Practice Act
As determined in Wells, supra, the method for such service is provided in § 16(2):
The reason for requiring strict adherence to the statute on substituted service, of course, is that the matters required by the statute, such as the age of the recipient of the summons and the verbal disclosure of its contents, are the very matters the legislature has seen fit to adopt to insure due process by making the procedure reasonably intended to secure actual notice.
In this context, then, we turn to the matters presented to the trial court. The relevant materials consist of a duly authenticated transcript of the Illinois judgment, Great Central's answers to certain interrogatories, and an affidavit filed by Podgorny in support of his motion for summary judgment.
The transcript of the judgment is merely that. It does not recite a basis for personal jurisdiction, nor is there included with it the sheriff's return or other evidence of service. It simply sets forth that plaintiff have judgment against Podgorny for $2,700 plus costs.
Interrogatories numbered 9, 12 and 13 addressed to Great Central and answered by its attorney touch on the question of service of process. They are as follows:
In support of his motion for summary judgment, Podgorny filed an affidavit in six paragraphs as follows:
We consider first the denial of Podgorny's motion, which appellant concedes depends upon the affidavit.
Indiana Rules of Procedure, Trial Rule 56(E) requires that supporting affidavits to be sufficient to ground a judgment must be made on personal knowledge, shall show that the affiant is competent to testify to the matters included, and must set forth such facts as would be admissible in evidence. The assertion of conclusions of law or opinions by one not qualified to testify to such, by affidavit, will not suffice. Renn v. Davidson's Southport Lumber Co., Inc. (1973), Ind. App., 300 N.E.2d 682; Newell v. Standard Land Corporation (1973), Ind. App., 297 N.E.2d 842.
Paragraphs numbered 2, 3 and 4 of Podgorny's affidavit present merely legal conclusions, and as such cannot support his motion. The same defect attends the opening phrase of paragraph numbered 6. Accordingly, Podgorny in fact supplied the court with two competent statements of fact. Paragraph 5 asserts the first notice he received of the action was upon receipt of summons in the second suit. The second half of paragraph 6 asserts that he had no personal knowledge of the proceedings until after entry of judgment.
This, however, is insufficient to establish his right to summary judgment for while lack of actual notice may make the judgment voidable, it is not the jurisdictional element that will render the judgment void. Milliken v. Meyer (1940), 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; McDonald v. Mabee (1917), 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608. Accordingly, the court correctly denied Podgorny's motion.
We next consider the trial court's action granting summary judgment to Great Central. In doing so, we briefly review the principles applicable under TR 56.
When a motion is filed, hearing is deferred for at least ten days, during which time the opponent of the motion may file affidavits. TR 56(C). When the motion comes on for hearing, the court is to decide it upon the basis of all the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any. TR 56(C). The opponent of the motion, however, may
The burden is on the proponent to establish that no genuine issue as to any material fact exists. Wozniczka v. McKean (1969), 144 Ind.App. 471, 247 N.E.2d 215; Apple v. Apple (1971), Ind. App., 274 N.E.2d 402. Accordingly, for purposes of determining whether to grant the motion: (a) facts set forth by the opponents' affidavits will be taken as true; (b) the depositions, admissions, etc. are to be liberally construed in favor of the opponent; and (c) any doubt as to the existence of a genuine issue as to a material fact must be resolved against the proponent of the motion. Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688; Ross v. Farmers Insurance Exchange (1971), Ind. App., 277 N.E.2d 29.
Finally, to help insure that real factual issues may not be evaded, supporting and opposing affidavits must be made on personal knowledge, must show affirmatively that the affiant is competent to testify to the matters covered, and must set forth facts as would be admissible in evidence. TR 56(E); Renn v. Davidson's Southport Lumber Co., supra. Similarly, under the process of construction favoring the opponent of the motion, matters contained in depositions and answers to interrogatories are to be considered in the light of their capability of being admitted into evidence at a trial.
The essential reasoning behind the foregoing procedures is that while summary judgment is a desirable tool to permit the court to promptly dispose of cases where only legal issues exist, it should not and cannot be used as a substitute for trial in determining factual disputes. And this is true, although the materials presented to the court show that the opponent is unlikely to prevail at trial. Wozniczka v. McKean, supra; Doe v. Barnett, supra.
In the case before us, neither party presented to the court competent evidence as to whether the provisions of the Illinois rules for substituted service on non-resident long-arm defendants were adhered to. Great Central's interrogatory answers, which would certainly be subject to objection as presented, do not even purport to factually establish compliance with the Illinois requirements.
All that supports Great Central's judgment is the presumption which attends the Illinois judgment. On trial, where the evidence can be weighed, the presumption casts upon Podgorny the burden of clearly establishing the asserted lack of jurisdiction.
However, in the summary judgment proceeding before us, Podgorny's affidavit that he received no notice must be taken as true. His lack of actual notice then supports an inference that the provisions for substituted service were not properly complied with, since the whole concept of substituted service constituting personal rather than constructive service, is that if the provisions for substituted service are met, the party is so reasonably likely to receive actual notice that the requirements of due process are fulfilled.
Thus, when we construe these answers liberally in his favor and resolve all doubt against Great Central, as we must also do, we must conclude that the issue is presented as to whether, in fact, substituted service was properly made. The record does not affirmatively demonstrate that it was, and summary judgment was therefore erroneous.
The summary judgment in favor of Great Central is, accordingly, reversed.
HOFFMAN, C.J., and STATON, J., concur.