Alexander v. Burke
| Decision Date | 28 July 1972 |
| Docket Number | No. 56041,56041 |
| Citation | 6 Ill.App.3d 919,287 N.E.2d 53 |
| Parties | Joe ALEXANDER and Danny Kay Alexander, Plaintiffs-Appellants, v. Phillip BURKE, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Erwin Cohn, Chicago, for plaintiffs-appellants.
Ron Fritsch, Chicago, for defendant-appellee.
Plaintiffs appeal from the order of April 30, 1971, vacating judgments in their favor entered on December 17, 1970, and setting the case for trial. They contend that defendant's motion to vacate the judgments did not comply with Section 72 of the Civil Practice Act (Ill.Rev.Stat.1969, ch. 110, par. 72) and that therefore the vacatur was void.
Defendant urges that since plaintiffs did not file any objections or answer to the motion and have failed to file a report of proceedings, they cannot now attack the sufficiency of the motion or the ruling of the court.
Defendant's pro se motion to vacate stated:
Due to insufficient service (I was never service by anyone directly) notice of any action was obtained from Cook County Credit Bu.--to vacate the judgment, * * *.
Plaintiffs argue that since the motion was presented more than 30 days after the entry of the judgments, it must be supported by affidavit as provided in sub-section (2) of Section 72, Supra. However, all motions to vacate judgments after 30 days are not necessarily subject to the restrictions of Section 72 since subparagraph (7) thereof makes reference to the general principles of law in regard to void orders in stating:
Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief.
Defendant's petition requested a vacatur of the judgments on the ground that he had not been served with process thereby questioning the jurisdiction of the court to enter any judgment against him. The deputy sheriff's return of process states that he served defendant by delivering a copy of the writ to 'Mr. Richardson, a person of his family.'
In Abron v. Public Pontiac, Inc., 64 Ill.App.2d 73, 77, 212 N.E.2d 326, 328, we stated:
Without service or appearance the court had no jurisdiction to enter a judgment against defendant, and the invalidity of such a judgment may be raised at any time by either direct or collateral attack.
We therefore find that defendant's motion in the instant case was an attack on an allegedly void order and need not have concerned itself...
To continue reading
Request your trial
-
Sarkissian v. CHICAGO BD. OF EDUC.
...104, 612 N.E.2d 980 (1993); Stankowicz v. Gonzalez, 103 Ill.App.3d 828, 59 Ill. Dec. 515, 431 N.E.2d 1272 (1981); Alexander v. Burke, 6 Ill.App.3d 919, 287 N.E.2d 53 (1972); Mabion v. Olds, 84 Ill.App.2d 291, 228 N.E.2d 188 Plaintiff disputes the Board's claim that the order here is not fin......
-
Sarkissian v. CHICAGO BD. OF EDUC.
...104, 612 N.E.2d 980 (1993); Stankowicz v. Gonzalez, 103 Ill.App.3d 828, 59 Ill.Dec. 515, 431 N.E.2d 1272 (1981); Alexander v. Burke, 6 Ill.App.3d 919, 287 N.E.2d 53 (1972); Mabion v. Olds, 84 Ill.App.2d 291, 228 N.E.2d 188 However, as submitted by plaintiff and acknowledged by the Board, th......
-
Stankowicz v. Gonzalez
...judgment pursuant to a special appearance challenging defective service is not a final and appealable order. (Alexander v. Burke (1972), 6 Ill.App.3d 919, 287 N.E.2d 53; Mabion v. Olds (1967), 84 Ill.App.2d 291, 228 N.E.2d 188.) In Mabion the plaintiffs-appellants made an argument similar t......
-
DiNardo v. Lamela
...service, it is not an appealable final judgment (Mabion v. Olds (1967), 84 Ill.App.2d 291, 228 N.E.2d 188; Alexander v. Burke (1972), 6 Ill.App.3d 919, 920, 287 N.E.2d 53; Stankowicz v. Gonzalez (1981), 103 Ill.App.3d 828, 831, 59 Ill.Dec. 515, 431 N.E.2d 1272). In our opinion, the latter l......