dissenting:
I must respectfully dissent from the holding of the majority opinion that defendant may not have relief by the application of section 10— 301(e) of the Illinois Vehicle Code under the facts of this case. The plaintiff secured jurisdiction over the defendant by service on the Secretary of State and mailing a copy of the summons and complaint to the defendant’s last known address by registered mail as prescribed by the provisions of the nonresident motorist statute (section 10 — 301(a) through (e) inclusive). A portion of this statute contains the following language:
“(c) The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action. 000
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(e) When a final judgment is entered against any non-resident defendant who shall not have received notice and a copy of the process by registered mail, required to be sent him as above provided, and such person, * * ° shall within one year after the notice in writing given him of such judgment, * # ” appear in open court and petition to be heard touching the matter of such judgment, * * * the person so petitioning may appear and answer the plaintiff’s allegations, and thereupon such proceeding shall be had as if the defendants had appeared in due season and no judgment had been rendered. And if it appears upon the hearing that such judgment ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise, it shall be ordered to stand confirmed against such defendant. ° 0 s” (Emphasis ours.) Ill. Rev. Stat. 1975, ch. 95M, par. 10 — 301.
In order to avoid due process objections based on the fourteenth amendment, the nonresident motor vehicle statute provides for service upon the Secretary of State and service by registered mail to the nonresident defendant at the place of his last known address in order that the nonresident defendant would be informed of the suit brought against him and to provide him with an opportunity to defend. It is apparent from subparagraph (e) above, that the legislature was aware that there would be instances where a nonresident defendant would not receive the registered mail containing the summons and complaint. To provide for this contingency, the legislature has provided generous provisions for relief for a defaulted defendant who had no notice or knowledge of the litigation. These provisions are more liberal than the requirements for relief under section 72 of the Civil Practice Act. There is good reason for this difference, as a nonresident motorist served at his last known address by registered mail is more vulnerable to a default judgment than one who has been personally served with a summons. Since no question is raised inferring an ambiguity, section 10 — 301 must be construed within the meaning of the plain language and applied in light of its apparent purpose, which is to compensate for the possible injustices inherent in a default judgment entered on the basis of substituted service as provided by that act.
Section 10 — 301(e) indicates two preliminary requirements for the application of that section: (1) a final judgment entered against a nonresident defendant who has not received notice and a copy of the summons and complaint by registered mail as provided by section 10— 301(b), and (2) the defendant must appear within one year after notice in writing given to him of such judgment and request the court to grant relief from such judgment. If a hearing reveals that these requirements are met, the default judgment must be vacated as the statute provides, in part: “* a ° thereupon such proceeding shall be had as if the defendants had appeared in due season and no judgment had been rendered.” (Emphasis added.) Applying the facts before the court in this cause to the above requirements, the defendant qualifies for the relief he requests pursuant to section 10 — 301(e).
The majority opinion relies on two points as a basis for denying defendant the hearing that is mandatory under the language of section 10 — 301(e). First, that the correspondence between the plaintiff’s attorney and the defendant’s insurer as to the pendency of the law suit cancels the defendant’s right to relief under subsection (e). In effect this theory means that notice to the insurer is notice to the defendant. The ramifications of such a theory could be quite widespread. For instance, let us assume that the coverage in this particular case were only *10,000 while the judgment is for *25,000; under these facts the defendant has been saddled with a personal obligation of *15,000 without any notice whatsoever of the proceeding and without any opportunity to secure relief as contemplated by the subsection in question. Furthermore, the facts of this case show that the defendant was the driver of a rented car and that his relationship to the insurer in this particular fact situation is much more tenuous than that between a policyholder and his insurer who has chosen to underwrite him after an opportunity to investigate the background and record of the assured. If such a change is to be made in the law as results from the holding of this case, then the legislature should make this change and not this court.
Second, the majority opinion implies that the relief provided by section 10 — 301(e) is denied because the defendant’s insurer was “playing games” with the plaintiff’s attorney since it admitted that it received his letter advising of the filing of this lawsuit and after such notice took no steps to defend or contact the plaintiff’s attorney. In oral argument, defendant’s attorney acknowledged that through inadvertence or negligence within the insurer’s office, no further action was taken to follow this lawsuit. Certainly this was a lack of diligence or negligence and, unfortunately, mistakes such as this do occur; however, the evidence in the cause before this court does not demonstrate that the insurer was playing games or was engaging in dilatory tactics. For instance, the affidavit of the plaintiff’s attorney shows that the insurer wrote to the plaintiff on August 10, 1976, 12 days after the accident, stating that an attempt had been made to contact him and the letter suggested that the plaintiff call the insurer collect. Further, the insurer promptly acknowledged receipt of plaintiff’s attorney’s notice of lien and indicated a willingness to discuss the matter and suggested that he send pertinent reports and bills to it. Furthermore, defendant’s attorney sought relief from the default judgment as soon as he learned of it, which was less than one year after the accident. There is no evidence of intentional- dilatory tactics on the part of the insurer as was the situation in Duke v. Paul, relied on by the majority.
Defendant’s affidavit filed in support of his petition in this cause states in part as follows: that his true name is Walter P. Miller III; that he is presently 40 years of age and his father, Walter P. Miller, Jr., is 76 years of age; that on July 26,1976, he resided with his father at 540 West Mermaid Lane, Philadelphia, Pa.; that on or about-September 1,1976, he removed himself from the premises where he resided with his father and since that date he has resided and presently resides at 1165 Maplecrest Circle, Gladwyne, Penna. 19035; that in truth and in fact he has never been served with summons in the above-entitied cause either by registered mail or by any other form of service whatsoever; that he had no knowledge of the existence of the suit on April 13,1977, when default was entered against him or on May 16, 1977, when a judgment was entered against him; that on questioning his father, he is now aware that a registered mail envelope came to the home of Walter P. Miller, Jr., his father, shortly after the first of the year, 1977. This affidavit was dated November 8, 1977.
The affidavit of Walter P. Miller, Jr., the defendant’s father, filed in support of the defendant’s petition for relief in this matter, states in part as follows: that Walter P. Miller III, his son, has not resided at 540 West Mermaid Lane in Philadelphia, Penna. since September 1, 1976; that he recollects that a letter did come addressed to Walter P. Miller and not knowing the sender of that letter, and acting for and in his own behalf, as the person to whom that letter was directed, he refused service of it; that he does not know the contents of that letter but the letter was a registered letter and he verily believes that said letter was intended not for him but for someone else.
As previously indicated, it is my opinion that the provisions of section 10 — 301(e) should be liberally construed in favor of providing relief from judgments or decrees which result from a default. This rule was applied in Park Avenue Lumber & Supply Co. v. Niles A. Hofverberg, Inc. (1966), 76 Ill. App. 2d 334, in a case involving relief pursuant to section 72 of the Civil Practice Act. As previously indicated there is even more reason to apply this approach to a defendant seeking relief under section 10— 301(e) as the only requirements set up by the legislature are that the defendant appear within one year and that he show that notice was never given to him.
The majority opinion takes the opposite approach in construing the statements made by the defendant and his father in the affidavits set forth above; in fact many conclusions and inferences are made by the majority which are contradicted by the affidavits or there is no support in the record, such as: (1) it is reasonable to suppose that Travelers at least gave the defendant notice of plaintiff’s action in filing the suit against him; (2) defendant, having been involved in an accident in Illinois, had reason to suppose the registered letter from Waukegan might relate to this matter; (3) defendant instructed his father to reject the registered letter; (4) it is obvious the letter was intended for the son, if not for the father; (5) it is apparent that defendant simply evaded the notice addressed to him; (6) it is entirely reasonable to assume that defendant was advised by his father that the letter had been received before the father refused it; (7) no statement is made that the father had lost touch with his son and it is reasonable to suppose that the father informed the defendant about the letter; and (8) the obvious corollary is that the father believed that the letter was intended for his son.
The central factual question before the trial court and before this court is whether or not the defendant had knowledge of the pending lawsuit prior to July of 1977. The defendant has stated under oath that he had no such knowledge. Likewise the defendant’s father states under oath that he did not know the contents of the registered letter and he refused it and that he did not know the sender of the letter. As pointed out above, there was no hearing conducted by the trial court and consequently the trial court was in no better position to determine the credibility of the defendant and his father than this court.
The majority opinion quotes extensively from the case of Duke v. Paul where the court refused to apply and grant relief under section 10— 301(e). Analysis of the facts of that case reveal a far different situation than presented here. In that case the accident was on February 22,1968; the defendant (insured) advised the insurer on May 5, 1968, that she received a letter from the plaintiff’s attorney and she requested the insurer to act as soon as possible as she was moving in June 1968. In August 1969, the insurer secured the defendant’s new address in Hawaii; in May of 1971 a default was entered against the defendant (this was three years after the accident); the insurer moved at first to quash the summons in December of 1971; moved to vacate pursuant to section 10 — 301(e) in July 1972 (this was over four years after the accident); plaintiff’s attorney ascertained part of the above information by discovery of the insurer’s file; the court conducted a hearing and took testimony; plaintiff’s attorney related various discussions with the insurer’s representatives in regard to the validity of the substituted service on the defendant and it was shown that the insurer’s representatives advised the plaintiff’s attorney that he “was out of luck” because the service was invalid.
The decision in Duke v. Paul is based upon (1) the dilatory tactics of the insurer, (2) the long period of time between the occurrence and the attempt to vacate the default and, (3) the fact that the defendant (insured) had knowledge of the claim and had requested the insurer to act promptly as she was moving to Hawaii. None of the foregoing facts are present in this case, and therefore Duke v. Paul is not applicable. Having in mind that the law does not favor default judgments and that our judicial system is based upon fundamental fairness where each party is given an opportunity to present his side of the case in an adversary proceeding, attention is invited to the following facts: (1) that the defendant has presented evidence of a meritorious defense; (2) that the plaintiff waited for more than 30 days before advising the insurer of the default judgment; and (3) that plaintiff’s attorney knew that by taking a default judgment, it could be set aside within one year and tried on its merits under the provisions of section 10 — 301(e). Under the foregoing circumstances it is my opinion that defendant is entitled to the relief contemplated under section 10 — 301 even assuming the defendant’s insurer was negligent in not following the case more closely. Under section 72 of the Civil Practice Act, the courts must apply equitable principles as justice and fairness require, and justice and good conscience may require that a judgment be vacated even though there may have been a lack of due diligence. (George F. Mueller & Sons, Inc. v. Ostrowski (1974), 19 Ill. App. 3d 973.) Since the requirements of section 10 — 301(e) are even more generous to a defaulted defendant than section 72; since its requirements fit the facts of this case; and since the facts of this case do not show that the insurer was playing games with the plaintiff’s attorney, the judgment of the trial court should be reversed and the default judgment vacated as provided in said section 10 — 301(e).