holding that, “[wjhere service of process is defective, the proper remedy is to set aside the service[,]” and that plaintiff cannot proceed against defendant until plaintiff effects proper service on the defendant
How later courts described this case
- holding that, “[wjhere service of process is defective, the proper remedy is to set aside the service[,]” and that plaintiff cannot proceed against defendant until plaintiff effects proper service on the defendant
Written by the judges who cited it.
The opinion
CAVANAUGH, Judge,
concurring and dissenting:
I concur in the result reached by the majority, that is, that the order dismissing the action should be vacated. However, I dissent from the majority’s reasoning and would find that the service effectuated on April 18, 1990 upon the nurse in charge of the intensive care unit at Rolling Hill Hospital was adequate service under the applicable rules of civil procedure. It seems to me that what appellant did was best calculated to effect proper service under the extraordinary circumstances presented by the facts of this case. I would find that the service was proper under 402(a)(1) since Dr. Park was, at the time, in the intensive care unit of a hospital and service upon the nurse in charge of that unit is a de facto compliance with 402(a)(1) since to require more would demand a most undesirable requirement of physical intrusion by the sheriff into the intensive care facility of a hospital.
In the alternative, I would conclude that service upon the intensive care unit nurse on duty was service upon Dr. Park at his “residence” under 402(a)(2)(i) by serving an adult person in charge of that residence. Under the unfortunate facts of this case, Dr. Park may be deemed a resident of the hospital by reason of the fact that he was undergoing a terminal admission which ended in his death on April 27, 1990, nine days after the effectuation of service.