Vaught, In Interest of

Decision Date30 December 1981
Docket NumberNo. 80-3274,80-3274
Citation59 Ill.Dec. 474,431 N.E.2d 1231,103 Ill.App.3d 802
Parties, 59 Ill.Dec. 474 In the Interest of Darrin VAUGHT, a minor. PEOPLE of the State of Illinois, Petitioner-Appellee, v. Darrin VAUGHT, Respondent-Appellant.
CourtUnited States Appellate Court of Illinois

James J. Doherty, Public Defender of Cook County, Chicago, for respondent-appellant; Frances Sowa, Asst. Public Defender, Chicago, of counsel.

Richard M. Daley, State's Atty., Chicago, for petitioner-appellee; Michael Shabat, Kevin Sweeney, Richard J. Cosentino, Asst. State's Attys., Chicago, of counsel.

McNAMARA, Justice:

The juvenile division of the circuit court of Cook County adjudged respondent, a minor, to be delinquent on the charge of attempt robbery. At a subsequent disposition hearing the court committed respondent to the Department of Corrections. On appeal respondent contends that the juvenile court lacked jurisdiction to make a finding of delinquency and to order his commitment since his father was not given notice of the proceedings. Respondent was represented by appointed counsel who, along with respondent's mother, was present at both hearings. The father's name was indicated on the petition but no mailing address was listed other than "Bremen, Ky." At no time in the juvenile court did counsel or respondent assert that the father should have been served. Nor does respondent challenge the fairness of the hearings.

A proceeding is void if the court lacks jurisdiction either of the subject matter or of the person. (Wood v. First Nat. Bank of Woodlawn (1943), 383 Ill. 515, 50 N.E.2d 830.) Jurisdiction of the subject matter "is the power to adjudge concerning the general question involved, and if a complaint states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches * * *." (Wood v. First Nat. Bank of Woodlawn, at 522, 50 N.E.2d 830.) The circuit courts have original jurisdiction of all justiciable matters. (In re Sexton (1981), 84 Ill.2d 312, 49 Ill.Dec. 709, 418 N.E.2d 729.) The Juvenile Court Act makes proceedings concerning the delinquency of minors justiciable in the circuit courts. (Ill.Rev.Stat.1979, ch. 37, par. 702-1.) Although a statute dictates the procedures to be employed in certain proceedings the mandatory nature of the provision is not necessarily a limitation on the court's subject matter jurisdiction. (See In re Sexton.) The court here, of course, had jurisdiction of the subject matter.

Jurisdiction of the person is the court's power to bind a particular person to its judgment and requires in part that the defendant be given sufficient notice. (Mullane v. Central Hanover Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865.) A defendant or unnamed party who was never served and who never appeared in the proceedings but whose rights were directly adjudicated therein may attack the judgment either directly or collaterally as void for failure to obtain jurisdiction over his person. (Sullivan v. Merchants Property Ins. Co. (1979), 68 Ill.App.3d 260, 24 Ill.Dec. 756, 385 N.E.2d 897.) But failure to join such an indispensable party does not deprive the court of jurisdiction over the parties properly before it. (In re J. W. (1981), 87 Ill.2d 56, 57 Ill.Dec. 603, 429 N.E.2d 501; Morrison v. New Orleans Public Service Inc. (5th Cir. 1969), 415 F.2d 419.) Hence, where a failure to join an indispensable party is brought to the attention of the reviewing court the appropriate course is to vacate the judgment and to order that the indispensable party be joined, not because the trial court lacked jurisdiction over the joined parties, but because fairness to the non-joined party dictates such a result. Ill.Rev.Stat.1979, ch. 110, par. 26.

Whether a party is truly indispensable depends on whether the individual has a present and substantial interest, as opposed to a mere expectancy, in the matter being litigated. (Bovinett v. Rollberg (1979), 73 Ill.App.3d 490, 29 Ill.Dec. 470, 392 N.E.2d 27.) Hence, our supreme court recently held that the "unknown" father of an illegitimate child who, of course, did not have custody of the child was not an indispensable party to delinquency proceedings where the custodial mother was present. (In re J.W.) The court noted that commitment of the child did not deprive the father of any substantial interest since the child was not previously in the father's custody. The court also stated that the father's speculative right to be made a party was outweighed by the countervailing consideration of the child's right to a speedy determination. The court further noted that a possible mistake to proceed in the absence of an indispensable party who may later attack the judgment does not, in any event, deprive the court of jurisdiction over the parties before it. The court finally held that the provisions of the Juvenile Court Act did not confer on the father the right to notice the absence of which would require a reversal of the judgment.

The Act provides for notice to parents, legal guardians or custodians, and when necessary, the nearest relative. (Ill.Rev.Stat.1979, ch. 37, pars. 704-1, 704-3, 704-4.) An exception to the general notice requirement, however, is contained in section 4-4(2):

"Notice by publication is not required in any case when the person alleged to have legal custody of the minor has been served with summons personally or by certified mail, but the court may not issue any order or judgment against any person who cannot be served with process other than by publication unless notice by publication is given or unless that person appears."

The court in In re J.W. concluded that notice to the mother who had actual custody triggered this exception, obviating the need for notice to the absent father.

Applying these principles, we examine the propriety of the trial court's jurisdiction over the relevant persons in the present matter. Respondent and his mother appeared in court and testified. The court had jurisdiction over their persons. (In re J.W.) The court never obtained jurisdiction over the father, since he was not served. We therefore must determine whether the father was an...

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