CHRISTOPHER DiNARDO et al., Plaintiffs-Appellants, v. DELORES LA-MELA, Defendant-Appellee.
Second District No. 2-88-0243
Second District
Opinion filed June 6, 1989.
For the foregoing reasons the judgment of the circuit court of Du Page county is affirmed.
Affirmed.
REINHARD and LINDBERG, JJ., concur.
Daniel G. Lauer, of Loss & Pavone, of Oakbrook Terrace, for appellants.
JUSTICE DUNN delivered the opinion of the court:
Plaintiff, State Farm Mutual Automobile Insurance, as subrogee of Christopher DiNardo, appeals from the trial court‘s order vacating a default judgment against defendant, Delores Lamela. Plaintiff contends the trial court was without jurisdiction to vacate the default judgment because defendant failed to comply with the statutory requirements of section 2-1401 of the Code of Civil Procedure (
Plaintiff filed a complaint in negligence against defendant alleging that she negligently drove her car causing an accident. A summons was returned not served. The reаson stated was defendant moved. Notice was served to the Secretary of State under the substituted service provision set out in section 10-301 of the Illinois Vehicle Code (
On January 5, 1988, defendant filed pro se a motion entitled “Notice to Vacate.” Defendant also filed pro se a notice of motion entitled “Reinstate.” The motion stated in its entirety: “I moved to default defendant $2,823.75 [sic].” At the hearing on the motion January 26, 1988, the trial court sua sponte treated defendant‘s motion as a
Plaintiff contends the court was without jurisdiction to decide a
In order to resolve the question of our jurisdiction, it is necessary to first determine the nature of defendant‘s motion to the trial court. Defendant filed a pro se motion which stated in its entirety: “I moved to default defendant $2,823.75 [sic].” At the hearing defendant stated that she never received notice of the complaint against her. The trial court stated it was construing defendant‘s motion as a
In order to obtain jurisdiction over the person of defendant, proper service of summons is required. (Allied American Insurance Co. v. Mickiewicz (1984), 124 Ill. App. 3d 705, 707.) Where a court does not have personal jurisdiction over the defendant, any order it enters against her is void ab initio and subject to direct or collateral attack at any time. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309; People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 71.) Moreover, the restrictions of
In construing defendant‘s motion as a motion to quash service of process, we find we have jurisdiction of this appeal, though we recognize that the case law dealing with circumstances similar to this case is not in complete agreement. A review of the case law reveals one line of cases that holds an order quashing service is appealable (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569; Lombardi v. Lombardi (1961), 31 Ill. App. 2d 184; Connaughton v. Burke (1977), 46 Ill. App. 3d 602; In re Marriage of Kelso (1988), 173 Ill. App. 3d 746); however, another line of cases holds that where a judgment has been vacated because of improper service, it is not an appealable final judgment (Mabion v. Olds (1967), 84 Ill. App. 2d 291; Alexander v. Burke (1972), 6 Ill. App. 3d 919, 920; Stankowicz v. Gonzalez (1981), 103 Ill. App. 3d 828, 831).
In our opinion, the latter line of cases are in error. These cases held that an order vacating a judgment because of improper service was not appealable because it merely left the litigation pending. In these cases, the trial court vacated the judgment because of improper servicе and then granted defendants leave to answer. (Mabion, 84 Ill. App. 2d at 294; Alexander, 6 Ill. App. 3d at 920; Stankowicz, 103 Ill. App. 3d at 830.) We first point out that the lower court resolutions in these cases, as well as in the instant case, are awkward and procedurally incorrect. In vacating the judgments because of improper service, the lower courts either exрressly or in effect quashed the service of process. (Mabion, 84 Ill. App. 2d at 294; Alexander, 6 Ill. App. 3d at 920; Stankowicz, 103 Ill. App. 3d at 830.) In so doing, the courts should not have required defendants to answer since there was no effective service requiring an answer. The appellate courts did not recognize this inconsistency. It is our belief that the appellate courts should not have dismissed the appeals for want of appellate jurisdiction since the lower courts were granting relief by quashing the service of process and the Illinois Supreme Court has held that an order granting a motion to quash service of process is an appealable judgment. (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 577-78.) In Brauer, the court stated:
“It is true, the order, in form, was only an order quashing the service of summons. It was not an order dismissing the suit, nor was it in the form of a final judgment on the merits. Regardless of its form, however, it was a complete and final disposition of the case, based upon the conclusion the court had reachеd that appellee was not amenable to the service of pro-
cess in the manner in which the summons was served. On that issue it was not only as effectual and conclusive but it was as final as any decision upon the merits. The result was the same. If it should be held that an order of this character is not appealable, then there would be no method by which a plaintiff could obtain a review of an order of the trial court quashing the service of process.” (Brauer, 383 Ill. at 577-78.)
In light of the reasoning in Brauer, we hold in cases where the judgment is vacated due to improper service that the effect of that order is to quash the service of process and an appeal may be had from this order.
Turning to the issue raised by plaintiff‘s appeal, we find no merit to plaintiff‘s contention that the trial court was without jurisdiction to vacate the default judgment because defendant failed to comply with
The record shows defеndant was not personally served with a summons; it was returned by the sheriff indicating that defendant moved. The record also includes an alias summons served on the Secretary of State.
Plaintiff filed an affidavit of compliance stating that defendant dоes not reside in Illinois. No facts were alleged to support this
In this case, nothing in the record indicates that the affiant had any information to reasonably conclude that defendant was a nonresident. The only evidence in the record comes from the sheriff‘s return, which merely states that defendant moved. There is no mention that defendant moved out of State. In Allied American Insurance Co., the court found the statements made on the sheriff‘s return, including: “not found,” “wrong address,” “moved and left no forwarding address,” insufficient to support the affiant‘s assertion that defendant was a nonresident. The court stated:
“We do not believe this constitutes the type of informаtion upon which one may leap to the conclusion that defendant is a nonresident of Illinois.” (Allied American Insurance Co., 124 Ill. App. 3d at 709.)
As in Allied American Insurance Co., we find the affidavit in this case fails to reasonably establish that defendant was a nonresident.
We recognize that defendant here did not file a special and limited appearance, as was the case in Brauer (383 Ill. 569) and R.W. Sawant & Co. (111 Ill. 2d 304), but such an appearance is not required when a party attempts to set aside a void judgment subsequent to the entry of the judgment. Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 1142.
In summary, we conclude that there is no merit to plaintiff‘s issue on appeal that the court was without jurisdiction to vacate the default judgment sinсe the record establishes that the court properly vacated a void judgment due to want of jurisdiction.
Affirmed.
REINHARD, J., concurs.
JUSTICE NASH, dissenting:
The appeal in this case is not from a final order, and it should be dismissed.
In addition to the facts noted in the opinion, other matters not there mentioned are necessary to the сorrect resolution of this appeal. On January 26, 1988, at the hearing of defendant‘s motion to vacate
On March 14, 1988, plaintiff filed its notice of appeal, and on March 25, 1988, defendant filed her answer to plaintiff‘s complaint. Plaintiff‘s counsel did not appear at the April 6 setting of the case; defendant did appear and advised the court that her answer had been filed. The record further discloses that on April 6, 1988, the case wаs dismissed by the trial court for want of prosecution.
In my view, defendant made a general appearance in the case on January 27, 1988, when she sought, and secured, the vacation of the void default judgment against her. The trial court found that to be evident and, after correctly vacating the judgment, gave defendant time to respond to the complaint. At the March 7 status hearing, plaintiff‘s counsel tacitly acknowledged that too was his understanding when he agreed defendant should have additional time to file her answer. Defendant made no objection to the jurisdiction of the court over her in any of these proceedings and did file her responsive answer to the complaint within the additional time allowed. Plaintiff‘s notice of appeal in these circumstances would not give jurisdiction to this court to review, at this time, plaintiff‘s claims of error.
The majority rely upon Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, as authority for this court to hold that “in cases where the judgment is vacated due to improper service that the effect of that order is to quash the service of process and an appeal may be had from this order.” (183 Ill. App. 3d at 1103.) Brauer, however, must be distinguished from the present case, as there the defendаnt made a special and limited appearance to contest the jurisdiction of the court when the judgment was entered and did not otherwise submit to its jurisdiction. The majority recognizes here that defendant did not make a special appearance, but finds such is not required when a рarty seeks to set aside a void judgment which has been entered, citing Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 1142.
There can be no quеstion in the present case that the general appearance by defendant did not validate the prior void judgment against her, which was then correctly vacated, and, in my view, there is also no doubt that she submitted personal jurisdiction to the trial court for prospective proсeedings in the case. Both of the parties, and the trial court, appear to acknowledge that status of the defendant in the case, and it apparently pends on plaintiff‘s complaint and defendant‘s answer in the trial court and may not now be appealed for lack оf a final order. The issue here may also be moot, as after plaintiff filed its premature notice of appeal, plaintiff‘s complaint was dismissed in the trial court for want of prosecution and no appeal has been taken from that judgment.
On the record presented, I would dismiss plaintiff‘s appeal.