Chapman, Mazza, Aiello, Inc. v. Ace Lumber & Const. Co.

• Decision Date: 13 June 1967
• Docket Number: A,Gen. No. 66--94,No. 8--0160,8--0160
• Citation: 83 Ill.App.2d 320,227 N.E.2d 562
• Parties: CHAPMAN, MAZZA, AIELLO, INC., an Illinois Corporation, Appellant, v. ACE LUMBER AND CONSTRUCTION CO., Inc., an Illinois Corporation et al., Defendants, and Beverly Bank, not Individually, but as Trustee under Trustppellee.
• Court: United States Appellate Court of Illinois

Page 562

227 N.E.2d 562

83 Ill.App.2d 320

CHAPMAN, MAZZA, AIELLO, INC., an Illinois Corporation, Appellant, v. ACE LUMBER AND CONSTRUCTION CO., Inc., an Illinois Corporation et al., Defendants and Beverly Bank, not Individually, but as Trustee under Trust No. 8--0160, Appellee.

Gen. No. 66--94.

Appellate Court of Illinois, Second District.

June 13, 1967.

Goldsmith, Dyer, Thelin & Schiller, Aurora, for appellant.

Corrigan & Mackay, Wheaton, for appellee.

DAVIS, Presiding Justice.

This is an action brought by Chapman, Mazza, Aiello, Inc., to foreclose a mechanic's lien on real estate legally vested in the Beverly Bank, as Trustee.

On January 11, 1965, the circuit court entered a decree awarding a lien under the Mechanics' Lien Act. (Ill.Rev.Stat.1965, ch. 82, pars. 1--39 incl.) The decree found that the plaintiff had entered into several contracts, in the fall of 1963 and winter of 1964, to furnish concrete and masonry labor and materials to be incorporated in an apartment building being constructed on the premises in question; and that as a result of work done and the subsequent compliance with the provisions of the Mechanics' Lien Act, the plaintiff had a valid lien in the amount of $28,866.74.

The decree ordered that the specified sum due be paid to the plaintiff within five days and, upon failure of such payment, that the premises be sold in accordance with the law to satisfy said lien. It also detailed the procedures under which the Master in Chancery was to conduct the sale and directed that he deliver to the purchasers at such sale a Certificate of Sale, which, among other things, was to set forth 'the time when such purchaser or purchasers will be entitled to a deed for said premises, if the same shall not be redeemed according to law.'

The decree further provided that 'if the premises so sold shall not have been redeemed within the time allowed by the laws of the State of Illinois,' the Master should execute and deliver a deed to the holder of the Certificate of Sale, and that all defendants and any persons claiming under them, thereafter would be barred from any claim to the premises 'which shall not have been redeemed according to law.'

The Master's sale under the decree was held on February 11, 1965, and the premises were bid in by the plaintiff for the full amount due, plus costs. The Order Approving the Report of Sale was entered on March 22, 1965. The Certificate of Sale issued by the Master provided:

'And I do Further Certify, That the said Chapman, Mazza, Aiello, Inc. legal representatives or assigns, will be entitled to a deed of said premises on the 11th day of February A.D.1966, unless the same shall be redeemed according to law.'

Section 16 of the Judgments Act (Ill.Rev.Stat.1965, ch. 77, par. 16) provides for the issuance of a certificate of sale when real estate is sold by virtue of the enforcement of a mechanic's lien and sets forth the contents of such certificate, including 'the time when the purchaser will be entitled to a deed, unless the premises shall be redeemed, as provided in this Act.'

Section 18 of the Act (Ill.Rev.Stat.1965, ch. 77, par. 18) relating to the redemption period from a judicial sale of real estate, states in part:

'Any defendant * * * may * * * except as in Section 18e of this Act provided, within 12 months from the sale, redeem the real estate so sold * * *.'

And, section 18e of the Act (Ill.Rev.Stat.1965, ch. 77, par. 18e) provides in part:

'In any suit * * * to foreclose any other lien upon real estate arising or created on or after the effective date of this amendatory Act * * * the court shall order, adjudge and decree in the decree foreclosing the lien, the date when the owner of the equity of redemption, or if more than one, when the last of the owners thereof, shall have been served with summons or by publication as required by law, or shall have submitted to the jurisdiction of the court, and any defendant * * * may * * * within 12 months from The date so adjudicated in the decree, or within 6 months after the foreclosure sale, whichever is later, redeem the real estate so sold * * *. The adjudication of such date in the decree of foreclosure shall have the effect of establishing the date for the commencement of the period of redemption under this section and shall be binding on all persons and for all purposes.' (Emphasis ours.)

Section 18e reduces the time within which one may redeem from the foreclosure of a lien upon real estate. The mechanic's lien in this case arose subsequent to August 7, 1961--the date of the Amendatory Act--and, thus, the provisions of Section 18e are applicable to this suit. Contrary to the mandate of the statute, the final decree did not contain the express adjudication of the date when the owner of the equity of redemption was served with process or submitted to the jurisdiction of the court.

The Beverly Bank was served with summons on July 11, 1964, although this fact was not noted or adjudicated in the decree. Under the applicable statute, the last day for redemption should have been August 11, 1965, six months after the foreclosure sale of February 11, 1965.

On September 14, 1965, the Beverly Bank filed a petition reciting that the foreclosure decree and subsequent sale and order confirming the sale were all made and entered without notice to it, although it had appeared and answered in the case; that the final decree failed to state the date of service of summons upon the last owners of the equity of redemption as required by the statute; that it had been thereby prejudiced; and that the foreclosure decree and Certificate of Sale and Decree confirming the Report of Sale should be set aside.

No order appears to have been entered on this petition, and on February 1, 1966, the Beverly Bank filed a petition to redeem, tendering the amount necessary therefor. The court, on the same date, entered an order declaring that the Bank had the right to redeem. Both the petition and order recited that the Certificate of Sale provided that the purchaser would be entitled to a deed on February 11, 1966, unless the premises were redeemed according to law. Obviously, it was the position of the court that the Bank had the right to redeem until that date.

On February 3, 1966, Vernal Frette, alleging that she was the assignee of the Certificate of Sale by virtue of an assignment dated January 10, 1966, petitioned the court to amend the final decree so as to expressly provide that the Beverly Bank was the owner of the equity of redemption; that it had entered its appearance on August 14, 1966; and that the period of redemption would expire 12 months from that date, or 6 months from the foreclosure sale, whichever was the later. The petitioner also claimed to be entitled to a deed immediately by reason of the provisions of Section 18e of the Judgments Act.

Vernal Frette thereafter, on February 14, 1966, filed a motion to vacate the order permitting redemption. The Beverly Bank filed a countermotion or petition praying that the decree and all subsequent actions taken in furtherance thereof be vacated and set aside or that, in the alternative, the redemption by it be held proper.

The court entered an order vacating the final decree of January 11, 1965, and all subsequent actions based thereon. Vernal Frette appealed to this court from the last mentioned order contending that the trial court was without jurisdiction, because of the lapse of time, to enter the order vacating the decree; and that it should have amended the decree Nunc pro tunc to include the date of service of summons on the Beverly Bank and should have directed the issuance of a deed. The Beverly Bank contends that the failure to incorporate the date when it was served with summons, as required by statute rendered the decree, and all subsequent proceedings thereon, void as in excess of the court's jurisdiction; and that the decree was, therefore, subject to attack subsequent to 30 days from the date of its entry. In the alternative, it argues that any amendment to the decree should be prospective only in its operation from the date it is made, and that the redemption would not then be late.

A final decree, ordinarily, may not be attacked subsequent to 30 days after its entry. Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294 (1960); Oskvarek v. Richter, 32 Ill.App.2d 438, 442, 178 N.E.2d 209 (1961). After 30 days, a final judgment or decree may be attacked in a very limited manner and only under certain prescribed circumstances. In the absence of a timely appeal, a final decree may be attacked under Section 72 of the Civil Practice Act (Ill.Rev.Stat.1965, ch. 110, par. 72). This section amalgamated into a single petition the variety of post-judgment and decree remedies formerly available in legal, equitable and statutory civil cases. The cases construing the section have accorded it a broader perspective than that given to various forms of post-judgment relief available at the common law. Brockmeyer v. Duncan, supra; Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350 (1952); Mieszkowski v. Norville, 61 Ill.App.2d 289, 297, 298, 209 N.E.2d 358 (1965); Wilson v. Wilson, 56 Ill.App.2d 187, 193, 205 N.E.2d 636 (1965).

In addition to the conditions under which relief may be obtained under Section 72, a void judgment may be attacked at any time in any court, directly or collaterally. Cherin v. R. & C. Company, 11 Ill.2d 447, 453, 143 N.E.2d 235 (1957); Barnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858 (1945); DePhillips v. DePhillips, 63 Ill.App.2d 19, 25, 211 N.E.2d 147 (1965). Section 72 of the Civil Practice Act specifically reaffirms, in subparagraph (7) thereof, that nothing contained in that section affects any existing right to relief from a void decree.

The petition of the Beverly Bank on which the order was entered vacating the decree and all subsequent proceedings, was filed more than 30 days after the entry of the final decree. We...