Legal Memorandum: Validity of a Substituted Service in IL

Issue: Under Illinois law, is an affidavit of service of a subpoena on the named person’s wife or mother sufficient for a motion for rule to show cause?

Area of Law: Litigation & Procedure
Keywords: Substituted service; Family members who reside with a defendant; Place of abode
Jurisdiction: Illinois
Cited Cases: 416 N.E.2d 23; 132 N.E.2d 81; 93 N.E.2d 520; 450 N.E.2d 974; 86 N.E.2d 160
Cited Statutes: 735 Ill. Comp. Stat. 5/2-203(a)
Date: 09/01/2000

There is a rebuttable presumption that the house where a defendant’s wife and children reside is his “usual place of abode.”  United Bank v. Dohm, 115 Ill. App. 3d 286, 450 N.E.2d 974, 976-77 (2d Dist. 1983). Thus, substituted service on a defendant’s spouse is sufficient if the spouse has the same place of abode.  See Scobble v. Burch, 337 Ill. App. 656, 86 N.E.2d 160 (1st Dist. 1949) (only abstract is published).  If the husband and wife live apart, the question is thornier.  The inquiry probably would focus on the reasons the spouses do not live together, e.g., working in another city rather than seeking a divorce, and facts establishing the defendant’s place of abode.  See United Bank, 115 Ill. App. 3d 286, 450 N.E.2d 974.  “The underlying consideration is whether substituted service at the chosen dwelling place is reasonably likely to provide the defendant with actual notice of the proceedings.”  Id., 450 N.E.2d at 977.

If the mother lives with the person to be served, substituted service will probably be valid.  For example in Glineberg v. Evans, 341 Ill. App. 332, 93 N.E.2d 520 (1st Dist. 1950) (only abstract was published), the defendant’s mother was served, the son having left for California two days earlier.  Because the mother and son lived in the same home, substituted service on the mother was valid, especially since her son received the complaint from his mother and had time […]

Subscribe to Litigation Pathfinder

To get the full-text of this Legal Memorandum ... and more!

(Month-to-month and annual subscriptions available)