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9 November 2000

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Dennis Kenzler, appeals from a default judgmententered in favor of plaintiffs, Peter Mugavero and Marlene Mugavero. He argues that he was not properly served with process and that, asa result, the judgment is void for lack of personal jurisdiction. We vacate the judgment and remand the cause.

In their complaint, plaintiffs alleged that defendant negligently caused an automobile accident in which plaintiffs wereinjured. Each plaintiff sought $5,000 in damages. Apparently, asummons, a first alias summons, and a second alias summons werereturned unserved. Daniel E. Kinnerk, a private detective, testified in an affidavit that defendant had moved from the addresslisted on the second alias summons and had left no forwardingaddress.

Plaintiffs moved orally for a third alias summons and forpermission to serve defendant via the Secretary of State. OnFebruary 16, 1999, the court granted those motions, setting a returndate of March 31, 1999. On the return date, the court found thatservice had been made. Because defendant had not filed anappearance or answer, the court entered a default.

Defendant made a special appearance and moved to quash service. He argued that service via the Secretary of State was not permittedby section 2--203.1 of the Civil Practice Law (735 ILCS 5/2--203.1(West 1998)). On May 5, 1999, the court denied that motion.

On May 17, 1999, defendant was defaulted for failing to entera general appearance. On June 11, 1999, the court entered judgmentof $5,000 in favor of each plaintiff.

On June 30, 1999, defendant moved to reconsider his motion toquash service. He reiterated that section 2--203.1 did not permitservice via the Secretary of State. He further asserted that,because he had always resided in Illinois, he was not subject toservice on the Secretary of State pursuant to section 10--301 of theIllinois Vehicle Code (625 ILCS 5/10--301 (West 1998)). Defendantasked the court to void the judgment.

Defendant attached to his motion an affidavit that plaintiffs'attorney filed with the Secretary of State on February 19, 1999. Inthat affidavit, counsel stated that section 10--301 applied becausedefendant was a resident of Illinois at the time of the accident buthad since become a nonresident. See 625 ILCS 5/10--301(a) (West1998).

On October 8, 1999, after an evidentiary hearing, the courtdenied the motion to reconsider "pursuant to service under [section]2--203.1." On November 8, 1999, defendant filed a notice of appeal.

[Nonpublishable material removed under Supreme Court Rule 23.]

If a party is not properly served with summons, the court hasno personal jurisdiction over that party. In that event, a judgmententered against that party is void, even if the party is aware ofthe proceedings. Because the question whether a court had personaljurisdiction is a question of law, our review is de novo. White v.Ratcliffe, 285 Ill. App. 3d 758, 763-64 (1996).

Defendant argues that he was not served in accordance witheither section 2--203.1 of the Civil Practice Law or section 10--301of the Illinois Vehicle Code. Plaintiffs do not profess that theymade service under section 10--301, arguing only that they compliedwith section 2--203.1. When the trial court denied defendant'smotion to reconsider, it expressed its agreement that service wasmade under section 2--203.1. Therefore, despite defendant'sadditional arguments, we will determine only whether plaintiffsserved him in accordance with section 2--203.1 of the Civil PracticeLaw.

Section 2--203(a) of the Civil Practice Law states in part:

"Except as otherwise expressly provided, service ofsummons upon an individual defendant shall be made (1) byleaving a copy of the summons with the defendant personally,[or] (2) by leaving a copy at the defendant's usual place ofabode, with some person of the family or a person residingthere, of the age of 13 years or upwards ***." 735 ILCS 5/2--203(a) (West 1998).

Section 2--203.1, however, states as follows:

"If service upon an individual defendant is impractical underitems (1) and (2) of subsection (a) of Section 2--203, theplaintiff may move, without notice, that the court enter anorder directing a comparable method of service. The motionshall be accompanied with an affidavit stating the nature andextent of the investigation made to determine the whereaboutsof the defendant and the reasons why service is impracticalunder items (1) and (2) of subsection (a) of Section 2--203,including a specific statement showing that a diligent inquiryas to the location of the individual defendant was made andreasonable efforts to make service have been unsuccessful. Thecourt may order service to be made in any manner consistentwith due process." 735 ILCS 5/2--203.1 (West 1998).

Defendant contends that he was not served in accordance withsection 2--203.1 because (1) plaintiffs did not file the requiredaffidavit; and (2) the section does not permit service on a residentof Illinois via the Secretary of State. Because we agree with hisfirst contention, we do not reach his second claim.

The record demonstrates that, when plaintiffs moved forpermission to make alternative service, the only relevant affidaviton file was the one Kinnerk submitted upon returning the secondalias summons. Even if that affidavit "accompanied" plaintiffs'motion, Kinnerk merely stated that defendant had moved from theaddress on the summons and had left no forwarding address. Obviously, those statements did not fulfill the requirements ofsection 2--203.1. Indeed, the affidavit evinced virtually noinvestigation into defendant's current whereabouts, much less the"diligent inquiry" that the section requires.

Plaintiffs suggest that, had defendant provided us with thetranscript of the hearing on his motion to reconsider, we would havebeen able to read the testimony reflecting plaintiffs' extensiveefforts to locate defendant. That alleged testimony, however, wasno substitute for the affidavit required by section 2--203.1. Anaffidavit is "a declaration, on oath, in writing, sworn to beforesome person who has authority under the law to administer oaths." (Emphasis added.) Spanberger v. Tulyasathien, 76 Ill. App. 3d 867,870 (1979). Plaintiffs do not dispute that they failed to file asufficient affidavit. Therefore, despite their claim that theyactually conducted a diligent inquiry into defendant's whereabouts,they did not comply with section 2--203.1.

In reaching that conclusion, we agree with defendant thatsection 2--203.1 requires strict compliance. Although no court hasso held, we note that similar provisions of the Civil Practice Lawhave been similarly interpreted. Strict compliance is required ofa plaintiff who makes substituted service under section 2--203(a)(2)(735 ILCS 5/2--203(a)(2) (West 1998)) (Dec v. Manning, 248 Ill. App.3d 341, 348 (1993)); publication service under section 2--206 (735ILCS 5/2--206 (West 1998)) (Marathon Finance Co. v. Pioneer Bank &Trust Co., 168 Ill. App. 3d 148, 151 (1988)); personal serviceoutside Illinois under section 2--208 (735 ILCS 5/2--208 (West1998)) (In re Marriage of Lewis, 213 Ill. App. 3d 1044, 1045(1991)); or service on a public entity under section 2--211 (735ILCS 5/2--211 (West 1998)) (Sarkissian v. Chicago Board ofEducation, 308 Ill. App. 3d 137, 152 (1999)). It is well settledthat a court interpreting a statute may rely on priorinterpretations of similar statutes. See Moscardini v. Neurosurg,S.C., 269 Ill. App. 3d 329, 333 (1994). Therefore, we determinethat a plaintiff who seeks to serve a defendant in accordance withsection 2--203.1 must strictly comply with the provisions of thatsection. Because plaintiffs failed to submit the requiredaffidavit, defendant was not properly served under section 2--203.1.

We recognize that defendant did not raise that particulardefect in the trial court. However, the lack of effective servicerenders the judgment void for lack of personal jurisdiction, andsuch a judgment may be attacked at any time. Wilson v. TelOpticCable Construction Co., 314 Ill. App. 3d 107, 110-11 (2000). Thewaiver rule does not apply.

For these reasons, we reverse the order in which the circuitcourt of McHenry County denied defendant's motion to quash service. Accordingly, we vacate the defaults and the default judgment enteredagainst defendant, and we remand the cause for further proceedings.

Order reversed; defaults and default judgment vacated; causeremanded.

BOWMAN, P.J., and RAPP, J., concur.