specially concurring:
I agree with tbe opinion of tbe court reversing tbe order and remanding tbe cause with directions to restore tbe judgments in favor of tbe plaintiffs. There are disturbing inconsistencies in tbe testimony of defendant’s supporting witnesses. It is strange that Anthony Micbicicb did not testify in person or by deposition.
Section 13.1 of tbe Civil Practice Act adopted by tbe Municipal Court of Chicago provides that tbe court may, in its discretion, upon motion, order service to be made by a private person over 21 years of age and that tbe return of tbe private person shall be by affidavit. It is to be observed that tbe private person so named is not a deputy of tbe sheriff, coroner, or bailiff. Tbe return may, in a proper case, be impeached by evidence sufficient to show its falsity, but it requires clear and convincing evidence to set it aside. Floyd Crouch, although in fact a deputy sheriff, did not act in tbe capacity of a deputy sheriff in serving tbe defendants on January 4, 1962. Tbe sheriff did not make a return “by Floyd Crouch, deputy.” Crouch complied with the statute and tbe rule by making an affidavit of service. In this affidavit be recognizes that be is acting not as a deputy sheriff hut as a private person named by the court to perform that service. I am of the opinion that in weighing the evidence as to the service by a “private person” the court should give consideration to the fact that he is not a public officer performing his official duty under an official oath and bond and also that in many cases, as in the case at bar, he is named at the suggestion of the attorney for the plaintiff.