Village of Algonquin v. Lowe
2011 IL App (2d) 100603
| Ill. App. Ct. | 2011Background
- Village filed eminent-domain complaint for fee-title to streets and tree-lawn/parkway areas; neighborhood drives over condemned segment used as Nagels' driveway and access to detached garage.
- Nagels argued lack of personal jurisdiction over them made the judgment void as to them.
- Village attempted service by publication and through affidavits, but Nagels were not properly served.
- Judgment on July 26, 2007 granted fee-title to Village; Nagels' driveway segment not road yet.
- 2–1401 petition filed by Nagels asserted voidness due to lack of personal jurisdiction; court vacated judgment as to Nagels.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether publication service can cure lack of personal jurisdiction. | Village argues publication sufficed to acquire jurisdiction. | Nagels contend publication cannot create personal jurisdiction for unserved parties. | Publication cannot establish personal jurisdiction over unserved Nagels. |
| Whether eminent-domain judgments are in rem or require personal jurisdiction over affected parties. | Village treats judgment as broad, in rem-like. | Nagels rely on in rem theory to bind unknown claimants. | Eminent-domain actions are not in rem; personal jurisdiction over affected parties is required. |
| Whether the 2–1401 petition can succeed without an evidentiary hearing when service is defective. | Village contends petition should be denied only if jurisdiction is lacking on record. | Nagels rely on lack of service; petition valid with proper process. | Court vacated judgment as to Nagels due to lack of proper service; petition affirmed. |
Key Cases Cited
- Crystal Lake v. La Salle National Bank, 121 Ill. App. 3d 346 (1984) (eminent-domain is in rem in implication, but current law does not treat condemnation as in rem)
- McGahan, 237 Ill. 2d 526 (2010) (in rem vs quasi in rem distinctions; notice requirements; eminent domain not in rem)
- Muslim Community Center v. Village of Morton Grove, 392 Ill. App. 3d 355 (2009) (collateral attack requires face-of-record jurisdiction; presumptions favor validity)
- Nasolo, 364 Ill. App. 3d 26 (2006) (false affidavits confer no jurisdiction; strict compliance with service requirements)
- First Bank & Trust Co. of O’Fallon v. King, 311 Ill. App. 3d 1053 (2000) (void default where service improper)