Sullivan v. Bach

• Citation: 427 N.E.2d 645,100 Ill.App.3d 1135,56 Ill.Dec. 450
• Decision Date: 16 October 1981
• Docket Number: No. 81-76,81-76
• Parties: , 56 Ill.Dec. 450 Mary L. SULLIVAN, Plaintiff-Appellee, v. Peter C. BACH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 645

427 N.E.2d 645

100 Ill.App.3d 1135, 56 Ill.Dec. 450

Mary L. SULLIVAN, Plaintiff-Appellee, v. Peter C. BACH, Defendant-Appellant.

No. 81-76.

Appellate Court of Illinois, Second District.

Oct. 16, 1981.

John J. Piccione & Assoc., John J. Piccione and Patrick C. Keeley, Wheaton, for defendant-appellant.

Law Offices of Daniel W. Burke, Lombard, for plaintiff-appellee.

VAN DEUSEN, Justice:

On May 16, 1979, the circuit court of DuPage County entered an ex parte judgment for $20,000, plus costs, against the defendant Peter C. Bach in a personal injury case. Defendant unsuccessfully sought to have the judgment set aside on the grounds that the judgment was void because the trial court lacked personal jurisdiction over him. This is the basis on which he appeals.

The facts of this case are somewhat unusual. On January 3, 1979, the plaintiff filed a complaint against the defendant for personal injuries arising out of an automobile collision that occurred November 19, 1978. Summons was issued on January 3, 1979. The return of the deputy sheriff on the summons indicates that substitute service was had on the defendant Peter C. Bach on January 4, 1979, by serving "Sharon Bach (daughter)" at 433 Hillcrest Lane, Lombard, Illinois, and mailing a copy thereof to the defendant at the same address. There is no indication on the return as to the approximate age of Sharon Bach. On March 2, 1979, an order of default was entered against the defendant. A prove-up was had on May 15, 1979, and judgment was entered against the defendant in the sum of $20,000, plus costs. On February 26, 1980, the defendant was served with a Citation to Discover Assets. On March 7, 1980, the defendant appeared personally at the citation proceedings, and he requested and obtained a continuance of the citation proceedings. On March 13, 1980, his counsel appeared, and the parties agreed to continue the hearing pending action by the defendant's insurance carrier.

On April 30, 1980, the attorney for the defendant's insurance carrier filed a general appearance on behalf of defendant and a section 72 petition (Ill.Rev.Stat.1979, ch. 110, par. 72) to vacate the judgment alleging a meritorious defense and excessiveness of the award.

On May 30, 1980, the defendant filed his First Amended Petition to Vacate repeating the allegations of the original petition and adding the allegation that the court lacked personal jurisdiction over the defendant because the substitute service had on January 4, 1979, was improper in that Sharon Bach was neither related to the defendant nor a member of his household nor did the defendant reside at the address where service had purportedly been had. This petition was accompanied by defendant's affidavit asserting the same facts.

On July 17, 1980, a hearing was had on the defendant's motion to vacate, and the court denied the motion but granted defendant 21 days to file an amended petition to vacate.

On August 7, 1980, the defendant filed a Second Amended Petition to Vacate limited to a claim that the court lacked personal jurisdiction over the defendant. This petition alleged factually that on January 4, 1979, the residence of the defendant was at 1120 S. Edgewood, Lombard, Illinois. The petition further alleged that on January 4, 1979, and at all times pertinent to this action there existed no such person as "Sharon Bach" who resided at 433 Hillcrest Lane, Lombard, Illinois, but that one Sharon Boland, age 10, did reside at that address, as did Carol Turano Bach, the defendant's estranged wife. The defendant swore to the truth of the factual allegations in the petition.

An order denying this petition was entered on September 23, 1980. In the order, the trial court found that since the defendant had entered a general appearance on April 30, 1980, he had waived any jurisdictional defenses and had submitted himself to the jurisdiction of the court. In addition to ruling on the matters before it at that time, the court's order also said "defendant may still file a section 72 petition."

On October 22, 1980, defendant filed a Third Amended Petition to Vacate the judgment. Count I, in substance, was a motion to reconsider the Second Amended Petition to Vacate, which was denied in the order of September 23, 1980. As an alternative, Count II sought to have the judgment set aside pursuant to section 72 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 72) and purportedly pled facts constituting a meritorious defense and due diligence.

On November 7, 1980, the trial court denied the petition on the following grounds. As to Count I, the defendant's filing of his general appearance on April 30, 1980, was the filing of a general appearance prior to judgment within the meaning of section 20(1) of the Illinois Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 20(1)). Regarding Count II, there was a want of due diligence required under section 72 of the Illinois Civil Practice Act. (Ill.Rev.Stat.1979, ch. 110, par. 72.) In response to a request by the plaintiff for a ruling, the trial court indicated that its order of September 23, 1980, was not a final order. The court did provide in its order of November 7, 1980, that it was a final order from which there was no reason to delay the enforcement or appeal.

On December 1, 1980, the defendant filed his Notice of Appeal. The defendant has limited his appeal to the trial court's denial of his petition to vacate the judgment against him for want of personal jurisdiction.

We first consider the contention of the plaintiff-appellee, that the trial court orders of July 18, 1980, and September 23, 1980, were final orders from which the defendant was required to appeal.

Plaintiff is correct that ordinarily an order entered denying any relief prayed in a section 72 petition is appealable (In re Marriage of Kirk (1980), 85 Ill.App.3d 805, 809, 41 Ill.Dec. 64, 407 N.E.2d 562; Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill.App.3d 688, 689, 306 N.E.2d 510), and a party has 30 days from the denial of a section 72 petition in which to file notice of appeal (Kirk, 85 Ill.App.3d at 809, 41 Ill.Dec. 64, 407 N.E.2d 562). In the instant case, the trial court denied the defendant's First Amended Petition on July 18, 1980, and the Second Amended Petition on September 23, 1980. The plaintiff maintains that the defendant should have appealed those orders but did not do so. Where no timely appeal is taken from a final order, the appellate court is without jurisdiction to review it or to consider the propriety of any subsequent order vacating or upholding the original determination. Werth, 16 Ill.App.3d at 690, 306 N.E.2d 510; In re Estate of Ireland (1971), 132 Ill.App.2d 157, 160, 267 N.E.2d 681.

Further, the filing of a section 72 petition is not a substitute for a timely appeal (Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill.App.3d 688, 690, 306 N.E.2d 510), and filing successive motions does not extend the time for appeal (In re Marriage of Kirk (1980), 85 Ill.App.3d 805, 809, 41 Ill.Dec. 64, 407 N.E.2d 562). (See Deckard v. Joiner (1970), 44 Ill.2d 412, 418-19, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 941, 91 S.Ct. 232, 27 L.Ed.2d 244). If the July 18, 1980, order denying the defendant's petition to vacate the default judgment were a final order, the time for appeal of that order would not be extended by the filing of the Second Amended Petition. (See Kirk, 85 Ill.App.3d at 809, 41 Ill.Dec. 64, 407 N.E.2d 562.) Failure to appeal an order denying a petition to vacate precludes the filing of a second petition to vacate, and it is error for the trial court to entertain a second petition. (Werth, 16 Ill.App.3d at 690, 306 N.E.2d 510.) Therefore, if the July 18, 1980, order had been a final order, defendant's failure to appeal that order would have precluded consideration of any subsequent petitions. However, the July 18, 1980, order was not final and appealable because it provided the defendant 21 days in which to file an amended pleading. (Curtis v. Albion-Brown's Post 590 American Legion (1965), 65 Ill.App.2d 473, 477, 213 N.E.2d 621, citing Vosnos v. Wenzel (1962), 35 Ill.App.2d 390, 183 N.E.2d 193; see Rose v. Centralia Township High School District No. 200 (1978), 59 Ill.App.3d 606, 607, 16 Ill.Dec. 932, 375 N.E.2d 1039.) The defendant did file the Second Amended Petition to Vacate within 21 days.

Similarly, the order of the trial court denying the Second Amended Petition on September 23, 1980, would have been a final order except for the fact that the order provided that "defendant may still file a section 72 petition." By providing in the order that defendant was given leave to file an amended petition, the order was not final and appealable. See Rose v. Centralia Township High School District No. 200 (1978), 59 Ill.App.3d 606, 607, 16 Ill.Dec. 932, 375 N.E.2d 1039.

The defendant filed his Third Amended Petition on October 22, 1980. That petition was denied on November 7, 1980. There is no question that the order denying the Third Amended Petition was final and, though not required nor determinative, the order itself states, "(t)his is a final order." The defendant filed Notice of Appeal of the November 7, 1980, order on December 1, 1980. We conclude that the denial of the defendant's motion to vacate the default judgment taken against him was not final and appealable until November 7, 1980, and the defendant timely filed his appeal. See Bissett v. Gooch (1980), 87 Ill.App.3d 1132, 1136, 42 Ill.Dec. 900, 409 N.E.2d 515.

Having determined that this court has jurisdiction to hear the appeal, we address its merits. The single issue raised by the defendant on appeal is that the trial court lacked personal jurisdiction over him and, therefore, the default judgment taken against him was void. He maintains that the service purportedly had upon him on January 4, 1979, was improper abode service.

Plaintiff's counsel...