Lebanon Trust and Sav. Bank v. Ray

• Decision Date: 28 February 1973
• Docket Number: No. 72--91,72--91
• Citation: 293 N.E.2d 623,10 Ill.App.3d 345
• Parties: LEBANON TRUST AND SAVINGS BANK, Plaintiff-Appellee, v. Obert W. RAY, d/b/a Base Auto Sales, Defendant. Appeal of Gloria MATHIS, Defendant.
• Court: United States Appellate Court of Illinois

Page 623

293 N.E.2d 623

10 Ill.App.3d 345

LEBANON TRUST AND SAVINGS BANK, Plaintiff-Appellee, v. Obert W. RAY, d/b/a Base Auto Sales, Defendant.

Appeal of Gloria MATHIS, Defendant.

No. 72--91.

Appellate Court of Illinois, Fifth District.

Feb. 28, 1973.

Bock & Stenger, Belleville, for defendant-appellant; Ralph T. Stenger, Belleville, of counsel.

Phillip A. Montalvo, McRoberts, Sheppard, McRoberts & Wimmer, P.C., East St. Louis, for plaintiff-appellee.

CREBS, Justice.

The Circuit Court of St. Clair County entered a default judgment against appellant in a replevin action wherein plaintiff replevied an automobile which was in appellant's possession. Seven months after that order was entered appellant filed a petition for relief from judgment, which petition was denied whereupon appellant initiated this appeal. On appeal appellant claims that the trial court never obtained jurisdiction over her and that the default judgment should therefore be vacated.

The facts in this case are somewhat bizarre. On March 12, 1970 plaintiff filed a complaint in replevin against Obert W. Ray, d/b/a Base Auto Sales. The replevin bond and the writ issued by the Clerk named Ray as the sole defendant. Under color of the writ the sheriff took possession of the automobile in question which was then in appellant's sole possession and control. At the time of the replevin of the car appellant had not been named as a party defendant in either the complaint, bond or writ, except for a handwritten notation on the writ adding her name under the previously designated defendant. The return on the writ does not reflect that it was served upon anyone, as required by Section 14 of the Replevin Act, and merely recites that the sheriff took possession of the automobile. On April 9, 1970 the appellant made a special and limited appearance and moved to quash the writ of replevin and the service of the writ on the grounds that appellant was never a party to the action and that the court therefore had no jurisdiction over her nor the property taken from her, said writ being, as to her, null and void. On the following day the court entered an Ex parte nunc pro tunc order allowing the complaint, affidavit for replevin and writ of replevin to be amended by interlineation thereby adding appellant as a party defendant in the case and as a party to whom the writ was directed. On April 20, 1970 appellant again made a special and limited appearance and filed a motion to expunge the nunc pro tunc order from the record alleging that the order was made Ex parte after her motion to quash was already of record and that said order was an invalid attempt to cure the original defects in the complaint and writ. The motion to quash and the motion to expunge were heard and denied on September 24, 1970 and on February 8, 1971 the court entered a default judgment for plaintiff, there having been no general appearance or responsive pleading made by either the original defendant or the appellant. On September 8, 1970, exactly seven months after the default judgment, ostensibly pursuant to Section 72 of the Civil Practice Act, wherein she asserted that the default judgment theretofore entered was null and void by virtue of lack of jurisdiction over the person of the petitioner and that same should therefore be vacated and set aside. On December 14, 1971 the court denied appellant's petition and as grounds therefore found that the petition was not supported by affidavit and was filed too late. It is from this latter order that appellant now appeals.

It is a fundamental principle that a void order or judgment may be attacked at any time. (Ill.Rev.Stat.1969, ch. 110, sec. 72(7); Culver v. Allerton, Ill.App., 269 N.E.2d 507; Weiner v. Checker Taxi Company, 124 Ill.App.2d 401, 260 N.E.2d 439; Antczak v. Antczak, 61 Ill.App.2d 404, 410, 209 N.E.2d 838.) In view of this clearly defined legal principle, we find absolutely no merit to the trial court finding that appellant filed her petition for relief from judgment too late to secure the relief for which she prayed. The sole basis for her petition is her claim that the judgment is void for lack of jurisdiction over her person and property, a claim which she has consistently and persistently advanced throughout the course of this litigation. Such an attack has no time limit and the decision of the trial court was clearly erroneous.

It is likewise clear that the trial court erred in ruling that she was not entitled to the relief sought by her petition because no affidavit was filed pursuant to the provisions of Section 72 of the Civil Practice Act. Her petition was based upon facts contained solely and completely in the record before the court and an affidavit courd only have been a reiteration of the matters already an official part of the court file. Plaintiff argues that the appellant has failed to follow the procedural steps required by said Section 72, which argument totally ignores the clear provision of Subsection 7 thereof, wherein it is provided that nothing contained in any other portion of that section shall affect any existing right to relief from a void order, judgment or decree. (Ill.Rev.Stat.1969, ch. 110, sec. 72(7).) The matter has been properly brought before this court and the sole issue to be determined is whether or not the judgment is in fact void as claimed.

The law is also clearly defined and established that jurisdiction is of...