County Collector for Judgment of Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for Year 1974 and Prior Years, Application of

• Decision Date: 15 April 1981
• Docket Number: No. 80-238,80-238
• Citation: 420 N.E.2d 1055,95 Ill.App.3d 1118
• Parties: , 51 Ill.Dec. 497 In the Matter of the Application of the COUNTY COLLECTOR FOR JUDGMENT OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR the YEAR 1974 AND PRIOR YEARS. Petition of Omer TROLARD for Tax Deeds, Respondent-Appellant, v. Marvin BOHNENSTIEHL, Loretta Bohnenstiehl and Gregory Bohnenstiehl, Petitioners-Appellees.
• Court: United States Appellate Court of Illinois

Page 1055

420 N.E.2d 1055

95 Ill.App.3d 1118, 51 Ill.Dec. 497

In the Matter of the Application of the COUNTY COLLECTOR FOR JUDGMENT OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR the YEAR 1974 AND PRIOR YEARS Petition of Omer TROLARD for Tax Deeds, Respondent-Appellant, v. Marvin BOHNENSTIEHL, Loretta Bohnenstiehl and Gregory Bohnenstiehl, Petitioners-Appellees.

No. 80-238.

Appellate Court of Illinois, Fifth District.

April 15, 1981.

Raymond J. Nester, Belleville, for respondent-appellant.

Freeark, Harvey & Mendillo, Belleville, for petitioners-appellees; Ted Harvey Belleville, of counsel.

HARRISON, Justice:

Respondent, Omer Trolard, seeks to appeal a judgment entered November 21, 1979, in the circuit court of Madison County, Illinois. The judgment in favor of petitioners Marvin, Loretta and Gregory Bohnenstiehl was entered pursuant to their motion under section 72 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 72) which sought to vacate an October 18, 1978 order of the same court. The October order authorized the issuance of a deed in favor of the respondent for certain real property located in Granite City, Illinois which Trolard had acquired an interest in following its sale for collection of delinquent taxes. Respondent wishes to determine issues concerning fraud and diligent inquiry regarding notice to the Bohnenstiehls of proceedings for the issuance of the tax deed. (See generally Ill.Rev.Stat.1977, ch. 120, pars. 747 and 744.) Because we lack jurisdiction to review the judgment of November 21 we are unable to adjudicate the matters presented. Appeal is dismissed.

Appellees initiated this action to vacate the October order on February 9, 1979. Section 72 is designed to be the principal mechanism for relief from judgments after 30 days from entry. As is stated in section 72(2) the petition is considered to be a wholly new action independent of the proceedings from which relief is sought, and it is a narrow exception to the rule that post-trial relief must be sought within 30 days. The November judgment granted relief upon finding that the notice given to the owners was inadequate under the facts presented and upon finding fraud in the contents of Trolard's May 11, 1978 petition for issuance of the deed. Respondent's notice of appeal from the November 21 judgment was filed May 23, 1980, approximately six months after the date of judgment.

In the interim between November 1979 and May 1980 Trolard was granted an extension of time in which to present a post-trial motion under section 68.3 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 68.3) regarding the section 72 proceeding. The motion finally submitted was denied following a hearing on April 24, 1980.

Timely notice of appeal in this court must be filed within 30 days of the date on which the circuit court judgment becomes final. (Ill.Rev.Stat.1979, ch. 110A, par. 303(a).) The filing of the notice of appeal is the sole jurisdictional act which initiates review. (Ill.Rev.Stat.1979, ch. 110A, par. 301.) Questions of jurisdiction must be raised by the reviewing court sua sponte where, as here, the parties have made no reference to its presence or absence. And, where the authority to recognize a cause for adjudication is lacking it must decline to proceed. (Norris v. The Board of Fire & Police Commissioners (1st Dist. 1975), 30 Ill.App.3d 224, 227, 332 N.E.2d 553.) Supreme Court Rule 304(b)(3) makes a judgment granting any of the relief prayed for in a petition under section 72 final, and therefore appealable. Ill.Rev.Stat.1979, ch. 110A, par. 304(b)(3), derived from Ill.Rev.Stat.1967, ch. 110, par. 72(6).

The appellate court has held on numerous occasions that motions to reconsider rulings on section 72 petitions are not to be used in order to toll the period allowed for the prosecution of a timely appeal. (E.g., Citywide Carpet, Inc. v. John (1st Dist. 1980), 83 Ill.App.3d 538, 542, 39 Ill.Dec. 31, 404 N.E.2d 465; Dempster Plaza State Bank v. American National Bank & Trust Co. (1st Dist. 1980), 83 Ill.App.3d 870, 873, 38 Ill.Dec. 879, 404 N.E.2d 303; City Auto Paint & Supply, Inc. v. Brandis (4th Dist. 1979), 73 Ill.App.3d 863, 866, 30 Ill.Dec. 48, 392 N.E.2d 703; contra Reuben H. Donnelley Corp. v. Thomas (1st Dist. 1979), 79 Ill.App.3d 726, 731-32, 35 Ill.Dec. 22, 398 N.E.2d 972. See also Wells v. Kern (5th Dist. 1975), 25 Ill.App.3d 93, 99, 322 [95 Ill.App.3d 1120] N.E.2d 496.) We are bound, therefore, by precedent to dismiss the present appeal for want of jurisdiction because of the failure to file a timely notice of appeal.

Appeal dismissed.

JONES, J., concurs.

WELCH, Judge, dissenting:

As recognized by the majority, an appeal must be within thirty days of the denial of a Section 72 petition in order to be timely. The petitioner may not toll that time limit by filing a motion to reconsider that denial. However, to penalize the opponent of a petition who files a motion to reconsider the granting of the petition by dismissing his appeal as untimely is an unwarranted extension of that rule.

In City Auto Paint and Supply, Inc. v. Brandis (4th Dist. 1979), 73 Ill.App.3d 863, 30 Ill.Dec. 48, 392 N.E.2d 703, the Section 72 petitioner filed a motion to reconsider the denial of his petition. His notice of appeal was filed within thirty days of the denial of the motion to reconsider, but more than thirty days after the denial of the Section 72 petition. The Fourth District Court dismissed the appeal and held that "an appeal must be taken within 30 days of the denial of a Section 72 petition." 73 Ill.App.3d at 866, 30 Ill.Dec. at 51, 392 N.E.2d at 705.

Brandis has been followed by many cases, mostly in the First District. Some of these cases enunciated a broader rule than in Brandis, and stated that an appeal must be taken within thirty days of the granting or denial of the petition. But this expansion of the Brandis rule was done in dicta, for those cases (including those cited by the majority) which have followed Brandis have only been concerned with appeals following the denial of a Section 72 petition. (Federal Sign and Signal Corp. v. Czubak (1st Dist. 1978), 57 Ill.App.3d 176, 14 Ill.Dec. 686, 372 N.E.2d 965; Sottile v. Suvick (1st Dist. 1979), 79 Ill.App.3d 631, 34 Ill.Dec. 886, 398 N.E.2d 877; Dempster Plaza State Bank v. American Nat. Bank and Trust Co. of Chicago (1st Dist. 1980), 83 Ill.App.3d 870, 38 Ill.Dec. 879, 404 N.E.2d 303; City Wide Carpet, Inc. v. John (1st Dist. 1980), 83 Ill.App.3d 538, 39 Ill.Dec. 81, 404 N.E.2d 465; Kirk v. Kirk (1st Dist. 1980), 85 Ill.App.3d 805, 41 Ill.Dec. 64, 407 N.E.2d 562; Peoples Gas Light and Coke Co. v. Rubin (1st Dist. 1980), 89 Ill.App.3d 244, 44 Ill.Dec. 520, 411 N.E.2d 886; Dulin, Thienpont, Potthast & Snyder, Ltd. v. Packaging Personified, Inc. (1st Dist. 1980), 89 Ill.App.3d 647, 44 Ill.Dec. 807, 411 N.E.2d 1173).

Where the Section 72 petition has been granted, followed by a motion to reconsider and then an appeal by the opposing party, the courts have not dismissed the appeal on the ground that it was not perfected within thirty days of the granting of the petition. That situation, in essence, was presented in Hallmark Personnel, Inc. v. Pickens-Kane Moving and Storage Co. (1st Dist. 1980), 82 Ill.App.3d 18, 36 Ill.Dec. 911, 401 N.E.2d 1049. The court recognized the conflict between those cases which followed Brandis and those which did not, but it did not decide the issue. Nonetheless, the appeal was heard on its merits.

The issue was faced in Reuben H. Donnelley Corp. v. Thomas (1st Dist. 1979) 79 Ill.App.3d 926, 35 Ill.Dec. 22, 398 N.E.2d 972, which is procedurally similar...