People v. National Builders Bank of Chicago

• Decision Date: 26 November 1956
• Docket Number: No. 34081,BAIRD-SMIT,A,34081
• Citation: 10 Ill.2d 121,139 N.E.2d 262
• Parties: The PEOPLE of the State of Illinois v. NATIONAL BUILDERS BANK OF CHICAGO et al. Julia A. Adamsppellant, v. Sylvia KAMM, Appellee.
• Court: Illinois Supreme Court

Page 262

139 N.E.2d 262

10 Ill.2d 121

The PEOPLE of the State of Illinois v. NATIONAL BUILDERS BANK OF CHICAGO et al.

Julia A. Adams BAIRD-SMITH, Appellant, v. Sylvia KAMM, Appellee.

No. 34081.

Supreme Court of Illinois.

Nov. 26, 1956.

Rehearing Denied Jan. 23, 1957.

Lionel G. Thorsness and Alfred F. Beck, Chicago, for appellant.

Sidney W. Mandel, Kalman S. Lieberman, and Joseph J. Sullivan, Jr., Chicago, for appellee.

DAILY, Justice.

This is an appeal by Julia Adams Baird-Smith, formerly Julia A. Adams, from an order of the superior court of Cook County overruling her motion to vacate a prior decree of that court which directed the issuance of a tax foreclosure deed. A freehold being involved, this court has jurisdiction on a direct appeal.

The facts are not materially in dispute. The property in question consists of six lots, located in the village of Olympia Fields, which were acquired by Julia A. Adams and her first husband, Maurice W. Adams, as joint tenants, soon after they moved to the locality in 1924. The lots are registered in Cook County under the Torrens Act (Ill.Rev.Stat.1953, chap. 30, pars. 45 to 148) and have been taxed in the name of 'Julia A. Adams, Olympia Fields, Illinois' since 1929. Maurice W. Adams died in 1940, and two years later the appellant married her present husband, Hugh Baird-Smith, but continued to reside in Olympia Fields until 1947, at which time she moved, with her husband, to Crete, Illinois. Although she has resided continuously at the same location since that date, her mailing address has been changed on two different occasions. Her first address, 'Post Box 156, Route 1, Crete, Illinois,' was changed in 1949 to 'Post Box 178,' and this was in turn changed in 1950 to her present address, '1658 Main Street, Crete, Illinois.'

In 1948, subsequent to the time she moved from Olympia Fields, a suit, naming appellant and her deceased husband, Maurice W. Adams, as defendants, was filed by the State's Attorney in the superior court of Cook County, upon application of Sylvia Kamm, appellee, to foreclose the general real estate tax liens upon these lots for the years 1931 to 1946, inclusive. Soon thereafter, affidavits of nonresidence were signed and filed by an assistant State's Attorney which stated that Maurice W. Adams and Julia A. Adams could not, upon due inquiry, be found so that process could be served upon them and that, upon diligent inquiry, their place of residence, either present or last known, could not be ascertained. Based upon such affidavits, service was by publication and, thereafter, an order of default was entered in 1949, and a decree of foreclosure and order of sale entered in March, 1953. Subsequently, the property was sold to appellee at public sale for the sum of $1,555, said sale being confirmed by the court on April 16, 1953. Pursuant thereto, a certificate of purchase was issued to appellee in June, 1953, and was registered by her with the Cook County registrar of titles in December, 1953, in accordance with section 82 of the Torrens Act. (Ill.Rev.Stat.1953, chap. 30, par. 119.) A written notice of registration was subsequently mailed by appellee to 'Maurice W. and Julia A. Adams, Village of Olympia Fields, Illinois,' on January 19, 1954, but was returned unopened to the sender after having been forwarded to 'Rt. 1, Box 156, Crete, Ill.' by the Olympia Fields postmaster.

In December, 1954, appellee filed a petition in the superior court asking not only that a tax deed issue at the expiration of the redemption period, but also that the registrar of titles be ordered to deliver a new owner's duplicate certificate of title without first receiving and cancelling the outstanding certificate. A notice advising appellant of such petition and of the date the redemption period would expire was published for three successive weeks in a Chicago newspaper, and a copy thereof was sent to appellant by registered mail at 1658 Main Street, Crete, Illinois. Appellee did not, however, file an affidavit as to the residence of appellant as required by section 14 of the Civil Practice Act. (Ill.Rev.Stat.1953, chap. 110, par. 138.) At the expiration of the redemption period, on April 16, 1955, appellee's application for deed was granted, and an order was entered directing the issuance of such deed and its registration without the surrender of the prior owner's duplicate certificate of title.

The appellant took no part in any of these proceedings until August 12, 1955, at which time she entered her special appearance and filed a motion to vacate the order of April, 1955, on the grounds that she had never properly been served with process and that appellee had failed to comply with the provisions of the Torrens Act. In support thereof, she filed an affidavit stating that she was the owner of said property as surviving joint tenant; that she did in fact receive the December, 1954, notice relative to the expiration of the period of redemption; that her address appeared on the Cook County tax collector's books as 'Olympia Fields, Ill.' from 1929 to 1954, except for be '1658 Main Street, Crete, Illinois;' that be '1958 Main Street, Crete, Illinois;' that she was well known in Olympia Fields, and that her whereabouts could have been determined by diligent inquiry. At the hearing which followed, appellant admitted not only that she had received the December, 1954, notice but also that she had discussed the matter with appellee's attorney at his office in March, 1955, and had telephoned him either directly or through her attorney on several occasions prior to the time the order for deed was entered. She also stated that she did not give a change-of-address card to the postmaster upon moving from Olympia Fields; that neither her name nor that of her first husband was listed in a telephone directory subsequent to 1946, and that during the redemption period she did not have enough money to pay all delinquent taxes which had been assessed against this property. From the order overruling her motion, the present appeal is prosecuted.

The appellant contends (1) that the superior court never acquired jurisdiction over her person, (2) that appellee did not comply with section 82 of the Torrens Act, which requires registration and notice of all certificates of sale, and (3) that the court failed to acquire sufficient jurisdiction to order the issuance of a new owner's duplicate certificate of title. Appellee, on the other hand, not only denies these allegations but also argues that this is a collateral attack which can question only errors appearing upon the face of the record. Thus, we must first consider this problem before inquiring into the merits of the case.

As appellee points out, we have frequently held that a judgment cannot ordinarily be set aside after the expiration of 30 days following its entry. Ill.Rev.Stat.1953, chap. 110, par. 174(7); Barnard v. Michael, 392 Ill. 130, 63 N.E.2d 858; Village of Lansing v. Homesteaders Life Ass'n, 367 Ill. 508, 11 N.E.2d 952. However, it is equally well established that a void decree may be vacated at any time. Thayer v. Village of Downers Grove, 369 Ill. 334, 16 N.E.2d 717; Gray v. W. A. Black Co., 338 Ill. 488, 170 N.E. 713. From the view which we hereinafter take of this matter, it is our opinion that the record itself indicates that the lower court did exceed its jurisdiction in one particular, and that the order for deed is void to this extent. Therefore, its validity may be contested in this proceeding.

In support of her first contention, appellant argues that the service of process by publication which comprised the basis for all of these proceedings, including the decree for deed, was defective for the reason that false affidavits of noresidence were filed by...