Federal Sign & Signal Corp. v. Czubak

• Decision Date: 18 January 1978
• Docket Number: No. 76-969,76-969
• Citation: 57 Ill.App.3d 176,14 Ill.Dec. 686,372 N.E.2d 965
• Parties: , 14 Ill.Dec. 686 FEDERAL SIGN & SIGNAL CORPORATION, a corporation, Plaintiff-Appellee, v. Barry CZUBAK, d/b/a G & W Beauticians Supply House, and the Abbey Beauty Salon, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 965

372 N.E.2d 965

57 Ill.App.3d 176, 14 Ill.Dec. 686

FEDERAL SIGN & SIGNAL CORPORATION, a corporation, Plaintiff-Appellee, v. Barry CZUBAK, d/b/a G & W Beauticians Supply House, and the

Abbey Beauty Salon, Defendant-Appellant.

No. 76-969.

Appellate Court of Illinois, First District, Third Division.

Jan. 18, 1978.

Arthur H. Grant, Ltd., Chicago, for defendant-appellant.

Edward R. Burr and Albert A. Golden, Chicago, for plaintiff-appellee.

SIMON, Justice:

Defendant appeals from an order denying his petition under section 72 of the Civil Practice Act to set aside a judgment entered for plaintiff. Ill.Rev.Stat.1975, ch. 110, par. 72.

Plaintiff filed a complaint against defendant to collect money allegedly due under several written agreements which obligated the plaintiff to maintain signs for defendant in return for monthly rental payments. On September 8, 1975, plaintiff filed a motion for summary judgment and defendant filed an answer in opposition. Plaintiff's motion for summary judgment was granted on September 25, 1975 by circuit court Judge Meyer H. Goldstein. Although a law clerk of defendant's counsel was present at this hearing, neither defendant nor his counsel was present.

Defendant filed a petition to vacate this judgment more than 30 days after it was entered. Judge Goldstein denied this petition on November 21, 1975. Defendant next filed two petitions on March 25, 1976. One was entitled, "Petition to Vacate Summary Judgment" and the other, "Petition Under Section 72 to Vacate ex parte Judgment Entered September 23, 1975." The latter petition incorporated by reference the other petition filed on the same date. Both petitions were filed more than 30 days after entry of the summary judgment, and consequently a motion to vacate would not have been timely. (Ill.Rev.Stat.1975, ch. 110, par. 68.3.) The petitions therefore must be considered as a section 72 petition to vacate the September 23, 1975 judgment. On March 25, 1976, circuit court Judge Charles J. Grupp entered an order denying the petition. On April 21, 1976, plaintiff filed another petition identical to the one filed on March 25, 1976. This was denied by Judge Goldstein in an order of May 12, 1976 from which defendant appeals.

Plaintiff filed a motion in this court, which was ordered taken with the case, to dismiss the appeal, contending defendant did not file a notice of appeal from either the September 23, 1975 judgment or the order entered March 25, 1976 within 30 days of their entry as required by Supreme Court Rule 303(a). (Ill.Rev.Stat.1975, ch. 110A, par. 303(a).) In response, defendant contends that the September 23 judgment was legally void and could, therefore, be attacked by successive motions in the trial court at any time even though the time limits for appeal had lapsed.

A void judgment may be attacked and vacated at any time. (Fox v. Department of Revenue (1966), 34 Ill.2d 358, 361, 215 N.E.2d 271; Cockrell v. Smith (1975), 27 Ill.App.3d 986, 327 N.E.2d 110; Lebanon Trust & Savings Bank v. Ray (1975), 10 Ill.App.3d 345, 347, 293 N.E.2d 623.) The attack may be either direct or collateral. An application to vacate a judgment made within 30 days of entry is a direct attack; if made after the expiration of the 30 days, it is a collateral attack. (Chiaro v. Lemberis (1960), 28 Ill.App.2d 164, 169, 171 N.E.2d 81.) Thus, if the September 23, 1975 judgment was void, defendant could use successive section 72 motions to attack it without losing his right to appeal. However, a void judgment is different from one which is voidable or erroneous. A judgment is void where there is a want of jurisdiction over the person or subject matter, or where the judgment was procured by fraud. (Cockrell; Lebanon, 10 Ill.App.3d at 348, 293 N.E.2d 623; Parker v. Board of Trustees of Southern Illinois University (1966), 74 Ill.App.2d 467, 469, 220 N.E.2d 258.) A judgment which is merely erroneous is not void and is not subject to collateral attack. As stated in Parker at 469, 220 N.E.2d at 260:

"It is the established law in Illinois that a judgment rendered by a court having jurisdiction of the parties and the subject matter is not open to impeachment in any collateral action, except for fraud in its procurement; and, even if the judgment is voidable and so illegal or defective that it would be set aside on a proper direct application, it is not subject to collateral attack so long as it stands in force."

The initial inquiry to be made is whether the September 23 judgment is void. Defendant contends that it is for two reasons. The first argument he advances is that the trial court, on September 23, 1975, did not enter judgment on the motion for summary judgment but in fact conducted a trial of the case without notice to the defendant. Defendant relies on the half-sheet of the case which was stamped by the circuit court clerk as follows "Trial ex parte by court finding issue versus defendant:

Barry Czubak

Damages Forty nine hundred eighty .75 $4980.75 Judgment on finding versus defendant Barry Czubak Forty nine hundred eighty 75 dollars and costs $4980.75."

He also states that the following language from the draft order entered on September 23, 1975 indicates that an ex parte trial was held:

"MOTION SUMMARY JUDGMENT.

Now comes the Plaintiff in this cause, the Defendant being absent and not represented, and thereupon this cause comes on in regular course for trial before the Court without a jury, and the Court having heard the evidence and the arguments of counsel, and being fully advised in the premises, enters the following finding, to-wit:

THE COURT FINDS ISSUE AGAINST THE DEFENDANT, BARRY CZUBAK, d/b/a G & W BEAUTICIANS SUPPLY HOUSE AND THE ABBEY BEAUTY SALON AND ASSESS THE DAMAGES AT FOUR THOUSAND NINE HUNDRED EIGHTY AND 75/100 DOLLARS ($4,980.75)."

Defendant's characterization of the September 23 hearing as an ex parte trial is inaccurate. The half-sheet was merely a memorandum of proceedings. It was not part of the official record, and cannot prevail over the written order. ¹ (In re Shannon (1977), 45 Ill.App.3d 876, 879, 4 Ill.Dec. 497, 360 N.E.2d 433; Alverio v. Dowery (1968), 104 Ill.App.2d 125, 131, 243 N.E.2d 858; Stickler v. McCarthy (1965), 64 Ill.App.2d 1, 20, 212 N.E.2d 723, aff'd in part, rev'd in part on other grounds, 37 Ill.2d 48, 224 N.E.2d 827 (1967).) The September 23 order does not state that a trial was held on that date. In fact, the order is captioned in raised letters "MOTION SUMMARY JUDGMENT." Even though the order refers to evidence and argument of counsel being heard by the court, this is most likely a reference to the evidence and argument presented on the motion for summary judgment. And, although the order also refers to the case as coming "on in regular course for trial before the court without a jury," this apparently relates to trying the motion for summary judgment.

All other relevant documents indicate that the trial court heard and granted a motion for summary judgment. An order of September 8, 1975, granted plaintiff leave to file a motion for summary judgment and set the hearing for September 23, 1975. The motion filed pursuant to this order was entitled, "Motion for Summary Judgment," and the notice of motion forwarded to defendant advised him that a motion for summary judgment was to be presented. As stated above, the actual order entered on September 23 was entitled, "MOTION SUMMARY JUDGMENT." Defendant's petition to vacate, filed 51 days after the entry of this judgment, was titled, "Petition to Vacate Summary Judgment." It did not refer to the September 23 hearing as a trial on the merits. Not until the March 15, 1976 petition did defendant claim an ex parte trial was held on September 23, 1975, and at the same time that petition characterizes the September 23, 1975 order as a summary judgment. The foregoing clearly demonstrates that Judge Goldstein ruled and entered an order on plaintiff's motion for summary judgment and did not conduct an ex parte trial.

The second argument defendant advances to support his contention that we are dealing with a void judgment is that a material issue of fact existed, precluding the granting of summary judgment. This contention neither questions the circuit court's right to hear the case, nor raises the claim of fraud, which are the grounds for holding a judgment void. (Cockrell; Lebanon.) Even if an issue of material fact did exist, the judgment would be erroneous, but it would not be void.

Because the summary judgment entered on September 23, 1975 is not void, defendant's attempt to skirt plaintiff's motion to dismiss...