dissenting:
The testimony of Deputy Sheriff Arthur Nawls does not satisfactorily rebut Patricia Johnson’s sworn statement that no Joe Johnson resided with her on the date of the alleged service and that there were no males living at her home on that date. A careful reading of Nawls’ testimony reveals that he had no knowledge whether the person he claimed to have served (Joe Johnson) was a member of the household of Patricia Johnson; Nawls never testified that Johnson told him he lived at the place where service was made on him or that he had knowledge that Joe Johnson lived there or was a member of the household. The following questions and answers put to Nawls by George Lopuszynski, attorney for Nibco, who called Nawls as a witness to testify regarding the service he made, and by Daniel Olofsson, attorney for Patricia Johnson, establish this.
The direct examination of Nawls by Mr. Lopuszynski included the following exchange:
“Q. And you attempted to serve in this case, and who did you serve?
A. J. Johnson.
Q. Did that person identify himself as a member of the household?
.A. Yes, sir.”
Deputy Nawls acknowledged when questioned by Mr. Olofsson and when further questioned by Mr. Lopuszynski that this testimony was based only on an assumption.
The examination by Mr. Olofsson went as follows:
“Q. Did you have any knowledge prior to service that Mr. Johnson was at home?
A. I didn’t understand the question.
Q. Did you have any prior knowledge if Mr. Johnson was living in the home?
A. Whether he was living there or not?
Q. Right, he.
A. He was there. He was living there at that time?
Q. At that time?
A. I assumed that he was living there. He was there.
Q. He was just present at the household?
A. He was at the household.
Q. What time was your service?
A. One-ten p.m.
Q. So, based on your assumption, you assumed he was a member of the household?
A. Yes.”
On redirect examination by Mr. Lopuszynski, Nawls testified:
“Q. Officer Nawls, when you attempt substitute service on a person other than one named in the summons, do you ask the person whether they know the person named in the summons?
A. Yes, sir.
Q. Do you recall whether you asked Mr. Johnson that?
A. Yes, sir.
Q. Did he say he knew Mrs. Johnson?
A. He said he did.
Q. Did he say what his relationship was, or do you recall?
A. No.
Q. Did you ask him whether he lived there?
A. No, sir, I didn’t.
Q. Okay. Do you recall how we was dressed?
A. No, I don’t.”
Although I agree with the majority’s observation in reliance upon Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, that the finding of the trial judge who has observed the demeanor of a witness should not be lightly disregarded, Nawls’ testimony quoted above shows that he answered in the affirmative the following question put to him on direct examination: “Did that person [J. Johnson] identify himself as a member of the household?” Yet this response was contradicted by the substitute- service stamp which Deputy Nawls affixed to the reverse side of the summons; it stated that the person served “refused to identify self.” Then on cross-examination Nawls acknowledged that he had no knowledge that Johnson was living there, but “assumed” he was living there and assumed he was a member of the household because he was there. On redirect examination Nawls conceded he did not ask Johnson whether he lived there.
I do not agree with the trial court’s determination that Nawls’ testimony leads to the conclusion that Johnson was a member of the household. The testimony was ambiguous and self-contradictory. Nawls started out saying Johnson identified himself as a member of the household and ended up testifying that he never asked him if he lived there. Nowhere in Nawls’ testimony can I find the statement relied on by the trial judge that Johnson said he was living there at the time. Moreover, Nawls’ assumption that Johnson was a member of the household does not support the trial judge’s conclusion which appears in the record as follows and which the majority quotes: “That’s part of being a member of the household. He doesn’t know. So I agree with him, he is a member of the household.”
I believe that Patricia Johnson was entitled to a closer reading of the record than this court has given it. Such a reading affords no basis for the deputy’s statement on his substitute-service stamp that Joe Johnson was a member of Patricia Johnson’s household or for disregarding Patricia Johnson’s sworn statement that he was not. Absent proof of such a relationship the service was invalid.
This case does not involve a question of credibility, that is whether the deputy sheriff was lying or, as the circuit court judge put it, whether he had any reason to lie. All that Nawls’ testimony established is that Joe Johnson never told him that he lived at the place of service or that he was a member of the household, but that Nawls assumed this was the case because Johnson was there. In view of Patricia Johnson’s sworn denial that a Joe Johnson resided with her, I do not believe Nawls has provided sufficient support for valid substitute service or that his testimony adequately supports the deputy’s return of service in which he stated he served a member of the household of Patricia Johnson. The state of the record is that, assuming Nawls did hand the summons to a person named Joe Johnson, Nibco has failed, in the face of Patricia Johnson’s denial, to establish that the person who received the summons was one our substitute-service statute made eligible to receive it.
This case does not involve a question of the stability of judicial proceedings and the service of judicial process. Rather it involves adherence to the principle that strict compliance with the provisions of section 2 — 203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 203(a)) is required whenever personal jurisdiction is based on constructive or abode service, so that the law can insure that defendants will receive adequate notice of actions filed against them and can have their day in court (Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 555). Clinton also teaches that where a constructive service is challenged by affidavit, as Patricia Johnson has done here, the return of service itself is not evidence, and absent testimony to the contrary by the deputy, the affidavit must be taken as trae. I would hold that Nawls’ testimony was not sufficient to overcome Patricia Johnson’s affidavit and that the trial court, in ruling that it was sufficient, misunderstood his testimony. No matter how impressive his demeanor was when he appeared as a witness, his plain words are not sufficient to establish proper service.
I would affirm the appellate court in order to give Patricia Johnson her day in court.
JUSTICE GOLDENHERSH joins in this dissent.