Parker v. Murdock
959 N.E.2d 1219
Ill. App. Ct.2011Background
- Plaintiffs leased an apartment and sued for alleged CRLTO violations; ex parte default judgment entered against Murdock on Oct 13, 2004 for $14,433.70.
- Murdock filed a section 2-1401 petition on Oct 13, 2006 seeking relief from the 2004 judgment, attaching his affidavit and judgment copy.
- Circuit court granted Murdock's 2-1401 petition on Jan 18, 2007; plaintiffs moved to vacate under 2-1301(e) on Jan 24, 2007 but court denied on Feb 28, 2007, allowing discovery.
- Plaintiffs filed a 2-1401(f) petition on Jan 25, 2010 contending the 2007 order was void because the 2-1401 petition was untimely under the two-year limit of 2-1401(c).
- Circuit court denied the 2-1401(f) petition on May 12, 2010; plaintiffs appealed, arguing the 2-1401 petition was untimely under Irving’s calendar-year method.
- Appellate court held the 2-1401 petition timely under 1.11 of the Statute on Statutes, rejected Irving’s calendar-year method, and affirmed the circuit court’s denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Murdock's 2-1401 petition timely under 2-1401(c)? | Treated under Irving, Oct 13, 2006 is untimely by calendar-year method. | Using 1.11, the two-year period includes Oct 13, 2006; timely. | Timely; petition not void. |
| Whether a void order may be attacked under 2-1401(f) when the underlying petition is timely. | If void, order attackable any time; relies on voidness to vacate. | Voidness not established because petition timely; thus order valid. | Not void; 2-1401(f) petition fails. |
| What is the proper method to compute time under 2-1401(c) and whether Irving should be followed. | Irving’s calendar-year method should render petition untimely. | Argues controlling statute uses calendar exclusion per 1.11; Irving rejected. | 1.11 governs; Irving rejected; timely petition. |
Key Cases Cited
- Sarkissian v. Chicago Board of Education, 201 Ill.2d 95 (2002) (section 2-1401 petitions finality and review; void judgments exception)
- Crowell v. Bilandic, 81 Ill.2d 422 (1980) (2-1401 time limits must be adhered to)
- Sidwell v. Sidwell, 127 Ill.App.3d 169 (1984) (strict construction of 2-1401 two-year limit)
- Smith v. Airoom, Inc., 114 Ill.2d 209 (1986) (section 2-1401 strict requirements; no relief for own negligence)
- Irving v. Irving, 209 Ill.App.3d 318 (1918) (calendar-year method for computing time later rejected)
- Reichert v. Court of Claims, 203 Ill.2d 257 (2003) (pre-1935 appellate decisions are persuasive, not binding)
- Sarkissian, 201 Ill.2d 95, 201 Ill.2d 95 (2002) (finality of 2-1401 review; void judgments attackable)