JOHN STEINBRECHER еt al., Appellants, v. ROSEMARY STEINBRECHER, Appellee.
Nos. 89551, 89560 cons.
Supreme Court of Illinois
September 27, 2001
Rehearing denied December 3, 2001
197 Ill. 2d 514
Bruce S. Terlep and Matthew D. Jacobson, of Swanson, Martin & Bell, of Wheaton, for appellant John Steinbrecher.
Jerold S. Solovy, Barry Levenstam and Jeffrey T.
Rosemary C. Steinbrecher, of Chicago, appellee pro se.
JUSTICE FITZGERALD delivered the opinion of the court:
In November 1995, John Steinbrecher (John) filed suit under the Illinois partition act (Act) (
BACKGROUND
On January 21, 1991, Francis Steinbrecher died intestate, survived by his three children, John, Jerome, and Rosemary. As heirs and beneficiaries of the estate of Francis Steinbrecher, John, Jerome, and Rosemary held title as tenants in common to three separate land parcels situated in Kendall County, totaling 409 acres. In
In August 1996, pursuant to the partition act the trial court appointed a real estate consultant as commissioner to “evaluate the feasibility of partitioning” the property.1 This commissioner surveyed the property and prepared a written “Appraisal/Commissioner Report” for the court.
At the partition trial in August 1997, consistent with his report, the commissioner testified that the property was incapable of equitable partition-in-kind between the three heirs. He stated that the property consisted of three noncontiguous parcels with widely varied characteristics. For example, the property contained farmland and wooded acreage on a floodplain. Moreover, the location and man-made obstacles such as a railroad track, a county road, and a running creek, further prevented an equal three-way division of the property. Neither Jerome nor Rosemary presented evidence to the trial court to refute the commissioner‘s testimony.
After reviewing the evidence, the trial court ruled that John, Jerome, and Rosemary each held an undivided one-third interest as tenants in common, that the property could not be divided without manifest prejudice, and that the property should be sold at a public sale.
In 1998, the exclusive listing agent approved by the court listed the property for a price of $4.5 million. In August 1998, after the trial court was notified by the
On September 25, 1998, Rosemary filed a pro se “Motion for Stay of Judgment Pending Appeal and Rehearing Re: Deposition” which she noticed for hearing on October 2, 1998. On October 2, the trial court continued the motion for hearing to October 30, 1998. The trial court then addressed Rosemary:
“THE COURT: *** I told you a long time ago that I‘m not going to hear this thing every other day. Just because you want to file a motion doesn‘t mean I‘m going to hear it. I told you to file things once a month. We‘ve set a date for a motion sometime later in this month.
***
Now, yet, you continually file motions. You continually get the—the Clerk‘s office has to bring this file down here. The other attorney has to come in. He was here all morning. And I‘ve told you in the past I‘m not going to hear this just because you want to file a motion and notice it up on whatever day you want to notice it up. Now, I will hear the—everything you havе, whatever it is, on the next court date
***
Now if you do this again, I‘m going to start imposing sanctions against you. We‘re not going to be disrupting everybody‘s life simply because you want to file a motion, especially when I‘ve given you a date in the future.
ROSEMARY: Your Honor, the date in the future had nothing to do with this particular issue.
THE COURT: What difference does that make? It‘s [sic] court date where everybody is supposed to be here, correct? Do you think I‘m going to sit here and have everybody
come in here every day just because you want to file a motion and you want to be heard on this day because you happen to be available? ROSEMARY: I thought time might be of the essence, in fairness to the parties.
THE COURT: I doubt, in this case, time is of the essence to anybody. As I said, do it again and I‘m going to start imposing sanctions against you. Okay?”
On October 30, 35 days after the court‘s final judgment, Rosemary appeared for hearing on her stay of judgment motion. Additionally, Rosemary filed and presented for hearing a new motion, entitled “Motion to Declare Void the Sale of Property to Moser Enterprises, Inc.” The trial court denied Rosemary‘s motion to void the sale and denied Rosemary‘s motion to stay the judgment. Rosemary never filed a motion with the appellate court to stay the judgment.
Despite the September 24, 1998, order granting right, title, and interest to Moser, Rosemary refused to vacate the Kendall County property. As a result, on October 30, 1998, Moser sought leave to intervene for the limited purpose of “enforc[ing] its right to possession.” This was Moser‘s first appearance in the litigation. The trial court granted Moser‘s petition for leave to intervene, granted Moser‘s motion for possession, and ordered Rosemary to vacate the property on or before November 13, 1998.
On November 13, 49 days after Moser was granted exclusive possession of the property, Rosemary filed a notice of appeal. John moved to dismiss the appeal, arguing that the appellate court lacked jurisdiction because the notice of appeal was untimely and because the appeal was moot pursuant to the protections afforded third-party purchasers under Illinois Supreme Court Rule 305(j) (
The appellate court held that procedural errors did not bar Rosemary‘s appeal because the threat of sanc-
Following entry of the appellate court judgment, Moser moved to intervene in order to file a petition for rehearing. On April 19, 2000, the appellate court granted Moser leave to intervene but denied its petition for rehearing. On May 24, 2000, Moser timely filed its petition for leave to appeal to this court. On July 5, 2000, John timely filed his petition for leave to appeal to this court. We granted the petitions and consolidated the appeals.
ANALYSIS
As an initial matter, John and Moser contend that the appellate court committed reversible error because it
It is a well-established proposition that jurisdiction only arises in the appellate court when a party timely files a notice of appeal. Berg, 193 Ill. 2d at 189; Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538 (1984);
Whether Rosemary‘s notice of appeal was timely filed is dependent on whether her October 30, 1998, “Motion to Declare Void the Sale to Moser Enterprises, Inc.” was a sufficient post-judgment motion under section 2-1203(a) оf the Code of Civil Procedure, and whether Rosemary timely filed that motion. Only a sufficient post-judgment motion, timely filed, will toll the 30-day period for filing a notice of appeal.
In addressing these matters, the appellate court held that Rosemary‘s October 30 motion was essentially a motion to reconsider, which is a proper post-judgment motion under section 2-1203. As to the timeliness of the October 30 motion, the appellate court held that under the circumstances of this case, the motion was timely and it thus served to toll the 30-day appeal period. The appellate court explained that, although pro se litigants are presumed to know the procedural rules, “when, as here, a trial court threatens sanctions for the filing of motions, such a litigant must be given considerable leeway in meeting procedural requirements.” 312 Ill. App. 3d at 297.
We need not decide whether Rosemary‘s October 30 motion was a proper motion under section 2-1203 or whether the trial judge‘s egregious comments excuse Rosemary‘s failure to file her motion within 30 days of the court‘s September 24, 1998, final order. Rather, we agree with John and Moser that Rosemary‘s appeal is moot, pursuant to Supreme Court Rule 305(j), and that jurisdiction is therefore lacking.
An appeal is moot when it involves no actual controversy or the reviewing court cannot grant the complain-
Pursuant to Rule 305(j), John and Moser argue that when the trial court granted right, title, and interest to a nonparty on September 24, 1998, and Rosemary failed to perfect a stay of that judgment, any order invalidating that judgment and sale is without effect. Whether Rule 305(j) renders this matter moot involves the application of law to undisputed facts. Therefore, our review is de novo. People v. Buss, 187 Ill. 2d 144, 204-05 (1999).
Rule 305(j) protects third-party purchasers of property from appellate reversals or modifications of judgments regarding the property, absent a stay of judgment pending the appeal. Rule 305(j) provides:
“If a stay is not perfected within the time for filing the notice of appeal, or within any extension of time granted under subparagraph (c) of this rule, the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed; nor shall the reversal or modification affect any right of any person who is not a party to the action under or by virtue of any certificate of sale issued pursuant to a sale based on the judgment and before the judgment is stayed.”
155 Ill. 2d R. 305(j) .
Thus, Rule 305(j) requires (1) the property passed pursuant to a final judgment; (2) the right, title and intеrest of the property passed to a person or entity who is not part of the proceeding; and (3) the litigating party failed to
We now apply those requirements to the instant case. First, on September 24, 1998, the right, title and interest to the Kendall County property passed pursuant to a final judgment. A final judgment disposes of the rights of the parties. In re Estate of French, 166 Ill. 2d 95, 101 (1995). Particularly, the final judgment “decides the controversies between the parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remains for the trial court to do but to proceed with its execution.” In re J.N., 91 Ill. 2d 122, 127 (1982); see also
In this case, all issues in controversy concerned the disposition of the Kendall County property. The trial court confirmed the sale of that property, directed a quitclaim deed be recorded, and entered a Rule 304(a) finding regarding the sale on September 24, 1998. Under Rule 304(a), this was a “final judgment” and therefore satisfies the first element of Rule 305(j).
Second, the property passed to a nonparty to the litigation, Moser. A party is dеfined as “[o]ne by or against whom a lawsuit is brought.” Black‘s Law Dictionary 1144 (7th ed. 1999). This includes a person who has a stake or standing in the lawsuit and one who is entitled to enforce rights from the final outcome of the litigation. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492-93 (1988).
Under Rule 305(j) a person or entity is deemed a nonparty at the time of the judgment and sale. Its language compels this conclusion. Specifically, in regard to minors or persons with disabilities, the text provides that “[t]his paragraph applies even if the appellant is a minor or a person under legal disability or under duress at the time the judgment becomes final.”
John initiated his partition claim in November 1995. On September 24, 1998, the trial court approved the offer, ordered the quitclaim deed entered in Moser‘s name,
Consistent with the appellate court‘s opinion, Rosemary contends that when Moser intervened in the circuit court on October 30, 1998, to secure its right to possession it became a “party” to the litigation and lost the protections afforded to nonparty purchasers under Rule 305(j). We reject this argument and hold that post-sale, post-judgment intervention does not bar the applicatiоn of Rule 305(j). As discussed, status attaches at the time of the sale and judgment. Stripping the protection of Rule 305(j) because of subsequent efforts by a party to secure exclusive possession of the property would render an absurd result. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 541 (1992) (whenever possible, this court shall avoid interpretations that render absurd or unjust results). Such a holding would deny recourse to parties who in good faith purchase property pursuant to a judicial sale, but are unable to secure right to possession and use of that property. This outcome would force parties to choose court intervention, and lose the protection of Rule 305(j), or engage in self-help to secure possession.
Finally, as required under Rule 305(j), Rosemary failed to perfect a stay of judgment in order to bar its application. A stay of judgment is collateral to the judgment and does not affect or alter the issues on appeal. See In re Estate of Goodlett, 225 Ill. App. 3d 581, 587 (1992). The Illinois Supreme Court rules provide clear direction regarding stay of judgments and the recourse available in the event a trial court denies a stay of judg-
On October 2, 1998, Rosemary filed a “Motion for Stay of Judgment Pending Appeal and Rehearing Re: Deposition.” This motion was denied by the trial court on October 30, 1998. Contrary to the requirement in Rule 305(j), Rosemary never renewed her motion to stay in the reviewing court.4 Therefore, under Rule 305(j), Mos-
Rosemary‘s pro se status does not alter this result. Pro se litigants are presumed to have full knowledge of applicable court rules and procedures, including procedural deadlines with respect to filing motions. See Domenella v. Domenella, 159 Ill. App. 3d 862, 868 (1987) (construing Rule 303(a), holding that pro se defendants must comply with the same rules of procedure as would be required of litigants represented by an attorney). Moreover, despite Rosemary‘s pro se status, the record does not indicate that she was ignorant of court rules and procedures. In fact, the record shows that Rosemary litigated this matter, including the filing of motions, responses, and court appearances, for several years prior to the trial court‘s final judgment. Rule 305(d) clearly explained her recourse following the dismissal of her motion to stay in the trial court. This court cannot excuse her failure to follow procedure in order to bar the application of Rule 305(j).
Public policy of this state supports our conclusion. Illinois law protects the integrity and finality of property sales, including judicial sales. Dixon v. City National Bank, 81 Ill. 2d 429, 433 (1980); Checkley & Co. v. Citizens National Bank, 43 Ill. 2d 347, 350 (1969); Blancett v. Taylor, 6 Ill. 2d 434, 438 (1955); Shultz v. Milburn, 366 Ill. 400, 405 (1937); Levy v. Broadway-Carmen Building Corp., 366 Ill. 279, 282-83 (1937); Smith v. Herdlicka, 323 Ill. 585, 592-93 (1926); Crist v. McCoy, 287 Ill. 641, 647 (1919); Osmond v. Evans, 269 Ill. 278, 284 (1915); Conover v. Musgrave, 68 Ill. 58, 62 (1873). Indeed, it extends this protection to purchasers who without notice at the time of the purchase buy in good faith. This finality and permanence is relied on by both purchasers and
The dissent suggests that this court ignore the plain language of Rule 305(j) and strong public policy favoring the finality and permanence of judicial sales to address alleged procedural irregularities occurring during the sale. This opinion declines to address or outline those irregularities because they are secondary to Rule 305(j).
The dissent maintains that the trial court lacked authority to order the sale because it failed to comply with the Act, and that this rendered the judgment “void.” According to the dissent, failure to follow the Act is fatal to the circuit court‘s jurisdiction. Thе Act, the dissent argues, gives the circuit court the “inherent authority” to adjudicate the controversy and, therefore, failure to follow procedure under the Act divests the court of jurisdiction and renders the order “void.” See 197 Ill. 2d at 543-45 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.), citing In re M.M., 156 Ill. 2d 53 (1993); People v. Wade, 116 Ill. 2d 1 (1987); Peck v. Peck, 16 Ill. 2d 268 (1959); Armstrong v. Obucino, 300 Ill. 140 (1921); Woodward v. Ruel, 355 Ill. 163 (1933); Maloney v. Dewey, 127 Ill. 395 (1889). According to the dissent, if the judgment is “void” Rule 305(j) would not apply.
The dissent mistakenly relies upon a rule of law not applicable to the present circumstances. The “inherent authority” requirement existed before reform to the judicial system in 1964. Effective January 1, 1964, an
“We believe the jurisdictional rule applicable to the Commission is analogous to that governing the courts of limited jurisdiction and powers formerly existing in our pre-1964 judicial system. In the context of cases involving the validity of orders or judgments of those courts, this court has said: ‘A judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter or which lacks the inherent power to make or enter the partiсular order involved, is void ***,,, (Emphases added and omitted.)
An administrative agency, like the pre-1964 circuit courts, is powerless to act unless statutory authority exists. City of Chicago, 65 Ill. 2d at 112. An administrative agency is a statutory creature with no general or common law power. City of Chicago, 65 Ill. 2d at 112-13. Conversely, a circuit court is a court of general jurisdiction, which need not look to the statute for its jurisdictional authority.
Importantly, the dissent overlooks our recent discussion explaining the distinction between “void” and “voidable” judgments. In Mitchell we stated that “[t]he question whether a judgment is void or voidable depends on whether the court entering the challenged order possessed jurisdiction over the parties and the subject mat-
Significantly, the dissent does not dispute that the trial court in the present case had both subject matter jurisdiction and personal jurisdiction over the parties. For this reason, the judgment is not “void.” This is true even if we were to assume that the trial court failed to strictly follow the provisions of the Act.
In Mitchell, a wife argued that the settlement agreement was “void” because the trial judge specified child support payments as a percentage rather than a dollar amount, and so failed to comply with procedures set forth in the Illinois Marriage and Dissolution of Marriage Act. In re Marriage of Mitchell, 181 Ill. 2d at 171-73. We agreed that the trial judge failed to follow the precise terms of the Act. However, we reversed the order of the appellate court finding the judgment “void“:
“In exercising this jurisdiction, however, the trial court judge entered a judgment that was contrary to the statute. *** The error in judgment, however, is not enough to divest the court of jurisdiction to enter the order. The judge had jurisdiction of the parties and subject matter, and, although the judgment was erroneous, the judge had authority to enter the child support order.” In re Marriage of Mitchell, 181 Ill. 2d at 175.
Clearly, under this holding, even if the trial court failed to follow the precise terms of the Act or entered a judgment in error, the resulting judgment is not “void.”
Quoting a more recent decision, People v. Davis, the dissent asserts that failure to comply with a statute is tantamount to a jurisdictional defect and renders the judgment “void.” 197 Ill. 2d at 547 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.), quoting Davis, 156 Ill. 2d at 156 (“the power [conferred by the statute] to render the particular judgment or sentence is as
Plainly, the judgment of the circuit court is not “void” and the provisions of Rule 305(j) apply. On September 24, 1998, when the trial court confirmed the sale of property to Moser and directed a quitclaim deed be recorded in its name, Moser was a nonparty to the action between John, Jerome, and Rosemary. Moreover, the property passed pursuant to a final judgment in a circuit court with jurisdiction. Rosemary failed to perfect a stay of that judgment. Thus, according to Rule 305(j) there was no longer any justiciable issue for which an appellate court could grant relief. As noted earlier, the power of appellate review is confined to the “consideration of actual controversies, cases in which the judgment can be given effect.” Barnard v. Michael, 392 Ill. 130, 133-34 (1945).
For the foregoing reasons, we find it unnecessary to address the remaining contentions on the merits. The
Appellate court judgment reversed; circuit court judgment affirmed.
JUSTICE FREEMAN, dissenting:
Today, the majority extends the protection of our Rule 305(j) (
FACTUAL BACKGROUND
The facts as stated in the majority opinion require elaboration. In the complaint for partition filed on November 28, 1995, plaintiff represented that he and defendants, the heirs and beneficiaries of the estate of Francis J. Steinbrecher, held title to the property as tenants in common. Plaintiff named as additional defendants Hinsdale Nurseries, Inc., C.D.‘s Trees Service, and David Mukelson, tenants in possession of certain portions of the property, and Farm Credit Services of Northern Il-
On April 26, 1996, plaintiff requested that the circuit court appoint a commissioner to assess the feasibility of a partition. On May 5, 1996, the court appointed Chicago Title & Trust Company, as a single commissioner, to partition the property. Chicago Title declined the appointment and, eventually, Michael R. Crowley was appointed as a substitute commissioner. Prior to the appointment of Crowley as substitute commissioner, the court did not ascertain and declare the rights, titles and interest of all the parties in the action, nor did it enter judgment of partition according to the rights of the parties. Further, Crowley did not take and subscribe an oath that he would fairly and impartially partition the property according to the rights and interests of the parties as declared by judgment of the court.
On March 11, 1997, Crowley submitted an “Appraisal/Commissioner‘s Report” to the court. In the report, Crowley valued the property, consisting of three parcels of land with a total of 409 acres, at $4,500,000. Crowley noted that, if the three parcels were sold individually, the value of the property would be $4,859,000. The values ascribed were as of August 30, 1996.
For purposes of partition, Crowley divided the three parcels into five segments. Crowley then stated:
“One of the purposes of this analysis is to recommend to the client an equitable distribution of the variоus segments and parcels of the subject property among three parties. The appraiser considered various permutations of the five various segments, with individual values of $1,595,000; $1,608,000; $1,008,000; $426,000; and $222,000.
None of the combinations of these five segments resulted
in three relatively equal units. The closest combination to this target was: the South Segment of Parcel #1 at $1,595,000, the North Segment of Parcel #1 at $1,608,000, leaving all of Parcel #2 at $1,434,000, and all of Parcel #3 at $222,000, for a total of $1,656,000 as the third unit. While the first and second combinations resulted in relatively similar values, the third combination was substantially greater. And therefore, the appraiser, acting as the court appointed commissioner, was unable to recommend an equitable distribution of these assets among three parties unless other compensation was provided to the first two combinations and/or some concession was applied to the third.”
At a bench trial in August 1997, Crowley testified that the three parcels were not contiguous. Parcel 1 was located approximately one mile from parcels 2 and 3. If the three parcels were sold as a unit, the property would be on the market for a longer period of time. Additionally, a buyer would likely discount the price paid for the property as a whole. Again, Crowley noted that the appraised value of the property as a whole was $359,000 less than the appraised value of the three parcels.
Crowley testified that in attempting to partition the land, he divided parcels 1 and 2 into four segmеnts. He believed that each parcel should be so divided because the parcels were bisected by a road. Adding parcel 3 to parcels 1 and 2, he obtained five segments that he attempted to partition equally. In his opinion, an equitable distribution or partition of the property in kind was not feasible unless some concession was made for the financial inequality between the three parcels as proposed for partition. Crowley did not consider further subdividing the 409 acres to arrive at a more equal partition of the property.
In a letter to all parties dated October 1, 1997, the court stated that the property could not be divided amongst the three heirs. The court ordered a public sale of the property, with the terms and notice of sale to be
Upon motion of plaintiff, the court approved a contraсt for the real estate firm of Dolan and Murphy to sell the property. According to the contract, Dolan and Murphy had the exclusive right to sell the property for the period beginning January 9, 1998, and ending April 7, 1998. The contract was not renewed in April 1998. However, the court allowed Dolan and Murphy to continue marketing the property. On July 16, 1998, Dolan and Murphy forwarded to the clerk of the circuit court a contract submitted by Inland Real Estate Development Corporation for the purchase of the property. The purchase price proposed by Inland was $3.5 million. On July 28, 1998, Dolan and Murphy forwarded to the clerk of the circuit court a contract submitted by Robert Hamman to purchase the property for $3,050,000.
At a hearing on July 30, 1998, plaintiff requested that the court approve one of the contracts submitted by Dolan and Murphy. Jerome objected to approval of the contracts, and the court continued the hearing to August 19, 1998. The night before the continued hearing, Dolan and Murphy mailed to the clerk of the circuit court a contract submitted by Moser Enterprises Inc., for the purchase of the property. The contract listed a purchase price of $3,550,000, $50,000 more than the purchase price proposed by Inland. At the hearing on August 19, 1998,
On September 4, 1998, Inland filed a petition for leave to intervene and a motion to reconsider the order of August 19, 1998. Initially, Inland noted that its contract to purchase the property was a matter of record in the proceeding and was file stamped by the clerk of the court on July 20, 1998. Moser‘s contract to purchase the property was file stamped on August 19, 1998. Inland also noted that Dolan and Murphy did not advise Inland that Moser had submitted a contract to purchase the property. To the contrary, Dolan and Murphy advised Inland that the Inland contract would be approved by the court at the hearing on August 19, 1998. Relying on this representation, Inland did not attend the hearing.
Inland suggested that the court allow the parties to submit additional sealed offers to purchase the property. Inland represented to the court that it would make another offer, on terms comparable to Moser‘s offer, with a higher purchase price. Inland believed that fundamental fairness to the buyers and to the heirs supported reopening the bids. At a hearing on September 24, 1998, plaintiff‘s counsel admitted telling Inland that Inland‘s offer to purchase the property was the highest offer received. He also told Inland that if the court were to approve one of the offers it would be the one Inland submitted. He testified, however, that Dolan and Murphy received Moser‘s offer to purchase the property the night before the hearing. The circuit court denied Inland‘s petition for leave to intervene and confirmed the sale to Moser.
ANALYSIS
A. Court‘s Statutory Authority
In the circuit court proceedings, as on appeal,
The majority does not detail the aspects in which the circuit court failed to comply with the Act nor does it consider whether the circuit court exceeded its authority by failing to comply with any particular provision of the Act. I will outline the four allegations I find most troubling.
First, Rosemary alleged that the circuit court appointed a commissioner to partition the property without first ascertaining the rights, titles and interest of all the parties to the action. Section 17-105 of the Act provides:
“Judgment. The court shall ascertain and declare the rights, titles and interest of all the parties in such action, the plaintiffs as well as the defendants, and shall enter judgment according to the rights of the parties.”
735 ILCS 5/17-105 (West 1996) .
Section 17-108 of the Act provides:
“Duty of Commissioners. The commissioners shall enter upon the premises and, if the same are susceptible of division without manifest prejudice to the rights of the parties, they shall make partition thereof, allotting the several shares to the respective рarties, quality and quantity relatively considered, according to their respective rights and interests as adjudged by the court ***. If the premises are not susceptible of division without manifest prejudice to the parties in interest, the commissioners shall value each piece or parcel separately.”
735 ILCS 5/17-108 (West 1998) .
Thus, the circuit court must declare the rights of the parties and enter a judgment of partition according to those rights before it appoints commissioners to partition the premises. Indeed, the commissioners are not
The circuit court appointed Crowley substitute commissioner on August 30, 1996. Crowley submitted his report to the court on March 11, 1997. Subsequently, in its order of October 28, 1997, the court found that the three heirs were the owners of the property, holding interest of an undivided one-third each, as tenants in common. It thus appears that the court did not comply with the requirements of the Act.
Second, Rosemary alleged the circuit court failed to require that Crowley take an oath, as commissioner, to fairly and impartially partition the property. Section 17-107 of the Act provides:
“Oath of Commissioners. Each commissioner shall take and subscribe an oath or affirmation fairly and impartially to makе partition of the premises, according to the rights and interests of the parties, as declared by the judgment of the court, if the same can be done consistently with the interests of the parties; or, if the same cannot be so divided without manifest prejudice to the parties in interest, that they will fairly and impartially appraise the value of each piece or parcel of the premises sought to be divided, and make a true report to the court.”
735 ILCS 5/17-107 (West 1996) .
In Tibbs v. Allen, 27 Ill. 119 (1862), this court noted that the commissioners appointed by the circuit court in the partition action did not take the oath prescribed by statute. “They were not sworn to make partition, ‘in accordance with the judgment of the court as to the rights and interests of the parties,’ but only sworn to divide the land according to their own opinions of those rights and interests, without regard to the judgment of the court.” Tibbs, 27 Ill. at 126-27. For this, and other reasons, this court reversed the decree for the sale of property and
In the present case, the record confirms that Crowley did not take an oath as commissioner.
Third, Rosemary alleged that the circuit court was not authorized to sell the property because Crowley did not report that the property could not be divided in kind. Section 17-116 of the Act provides:
“Sale of premises not susceptible to division. When the whole or any of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof, and the commissioners appointed to divide the same so report, the court shall order the premises not susceptible of division to be sold at public sale, upon such terms and notice of sale as the court directs.”
735 ILCS 5/17-116 (West 1996) .
Thus, it is only upon a finding by the commissioners that the property is not susceptible of division that the circuit court will order a sale of the property.
Crowley‘s report states:
“While the first and second combinations resulted in relatively similar values, the third combination was substantially greater. And therefore, the appraiser, acting as the court appointed commissioner, was unable to recommend an equitable distribution of these assets among three parties unless other compensation was provided to the first two combinations and/or some concession was applied to the third.” (Emphasis added.)
Was Crowley thereby making an unequivocal statement that the property could not be partitioned without manifest prejudice to the parties in interest, or was Crowley suggesting that the property could be partitioned subject to additional compensation to some of the owners? If the actual finding was that the property could be divided subject to owelty payments, the circuit court
In Peck v. Peck, 16 Ill. 2d 268 (1959), this court held that a judgment of partition was invalid because it was not in conformity with the partition act. The court observed:
“The object of partition is to enable those who own property in common to sever their interests, so that each one may take possession of, enjoy, and improve his separate estate at his own pleasure. [Citations.] The law favors a division of land in kind, rather than a division of the proceeds of a sale thereof, and a sale under partition is proper only where a division of the premises cannot be made without prejudice to the rights of the interested parties. [Citations.] To implement this policy our statute provides for the appointment of commissioners to determine whether property is susceptible of division, [citation] and in construing such statute this court has said: ‘*** whether the proceeding for partition is by petition under the statute or by bill in chancery, an essential prerequisite to a decree authorizing a sale is the appointment of commissioners to make partition, and a report by them that the land is not susceptible of partition; *** section 16 of the Partition Act is mandatory, and *** where partition is is sought by either mode, a decree for sale is erroneous, unless based upon a report of commissioners.’ [Citations.] Considering these established principles it is manifest that the court was in error in directing a sale of appellant‘s interest in the manner prescribed.” Peck, 16 Ill. 2d at 285-86.
This court remanded the cause to the trial court for the entry of a decree in conformity with the partition statute. See also Rosenbaum v. Rosenbaum, 38 Ill. App. 3d 1, 15 (1976) (The court observed that a decree of sale is erroneous unless it is based on the report of a commissioner or commissioners. Commissioners were not appointed in the case, nor did the report of a commissioner precede the lower court‘s order of sale. Therefore, the
Returning to the present facts, the property at issue consisted of 409 acres of land. The very size of the property suggests that some division in kind would have been possible. As this court observed in considering a report that 720 acres of land could not be divided:
“It would require much proof to induce the belief that so much land could not be divided fairly and equally, according to quantity and quality, among seven claimants.” Tibbs, 27 Ill. at 128.
Fourth, Rosemary alleged that the circuit court was not authorized to sell the property in any manner other than at public sale. Section 17-116 of the Act provides that “the court shall order the premises not susceptible of division to be sold at public sale.”
The mechanics of the sale of the property in this case demonstrate the problems inherent in a sale which is not at public vendue. Inland‘s contract to purchase the property was a matter of record in the proceeding and was file stamped by the clerk of the court on July 20, 1998. Moser‘s contract to purchase the property was mailed to the clerk of the court the evening of August 18, 1998, and was presented to the circuit court at the hearing on August 19, 1998. The purchase price listed in Moser‘s contract, $3,550,000, was only $50,000 more than the purchase price listed in Inland‘s contract. Inland was not informed of Moser‘s contract, and, consequently, Inland did not increase the purchase price listed in its contract.
Three parties submitted contracts for the purchase of the property. These parties were vying for the right to construct new housing in an area undergoing substantial development. Surely, a public sale with all parties aware of the proposed bids would have maximized the returns to the owners of the property.
The majority purports to answer Rosemary‘s argument in a footnote. See 197 Ill. 2d at 524. Therein, the majority notes that the circuit court had jurisdiction and authority over the parties and the property. The majority also notes that “a circuit court does not lose jurisdiction because it made a mistake in determining the facts, the law, or both.”
The majority notes correctly that a court may not lose jurisdiction because it makes a mistake in determining the facts or the law. People v. Davis, 156 Ill. 2d 149, 156 (1993). However, Rosemary did not merely argue that the circuit court made a mistake in determining the facts or the law. Rosemary argued that the circuit court failed to follow the very statute empowering the court to sell the property. As this court observed in Davis, “the power to render the particular judgment or sentence is as important an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction.” Further, “a judgment or decree may be void where a court has exceeded its authority.” Davis, 156 Ill. 2d at 156.
Thus, in People v. Arna, 168 Ill. 2d 107 (1995), this court held void a trial court order which did not conform to a statutory requirement. The trial court had jurisdiction of the parties and subject matter. However, the trial court did not have the inherent authority to enter an order imposing concurrent terms on the defendant.
And in Armstrong v. Obucino, 300 Ill. 140 (1921), this court found that a sale made contrary to statute,
“The statement has very frequently been made that where a court has jurisdiction of the parties and the subject matter, its decree, however erroneous, can only be attacked on aрpeal or error; but the rule is subject to an exception equally well settled, that a decree may be void because the court has exceeded its jurisdiction. The bill prayed for the enforcement of the lien by a sale beyond and contrary to the powers given by the statute for enforcing mechanics’ liens, and it does not follow that because the court had acquired jurisdiction of the parties and the subject matter it could make such a decree as was prayed for. Courts are limited in the extent and character of their judgments, and if they transcend their lawful powers their judgments and decrees are void and may be collaterally impeached wherever rights claimed under them are brought in question. The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it. [Citations.] Where a court, after acquiring jurisdiction, has assumed to enter a decree for a sale which goes beyond the limits of the jurisdiction and transgresses the law the decree is void, and the sale based thereon is likewisе an absolute nullity.” Armstrong, 300 Ill. at 142-43.
See also In re M.M., 156 Ill. 2d 53, 64 (1993) (jurisdiction is “the power of the court to adjudge concerning the general question involved [citation], as well as the power to grant the particular relief requested [citations]. Every act of the court beyond that power is void“); People v. Wade, 116 Ill. 2d 1 (1987); Woodward v. Ruel, 355 Ill. 163, 173 (1933) (Stone, J., dissenting) (“One of the essentials of a valid judgment is that the court have jurisdiction to render that particular judgment. Where a court, after acquiring jurisdiction of the subject matter,
To answer Rosemary‘s contention, the majority must actually determine whether the circuit court exceeded its authority in ordering the sale of the property, and whether the circuit court‘s failure to follow the Act rendered its judgment void. The majority is unwilling to do so.
Instead, citing In re Marriage of Mitchell, 181 Ill. 2d 169 (1998), the majority suggests that I “overlook[ed] our recent discussion explaining the distinction between ‘void’ and ‘voidable’ judgments.” 197 Ill. 2d at 530. The majority educates:
“In Mitchell we stated that ‘[t]he question whether a judgment is void or voidable depends on whether the court entering the challenged order possessed jurisdiction over the parties and the subject matter. [Citation.] If jurisdiction is lacking, any subsequent judgment of the court is rendered void ***.’ In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998), quoting People v. Davis, 156 Ill. 2d 149, 155-56 (1993).
Significantly, the dissent does not dispute that the trial court in the present case had both subject matter jurisdiction and personal jurisdiction over the parties. For this reason, the judgment is not ‘void.’ This is true even if we were to assume that the trial court failed to strictly follow the provisions of the Act.” 197 Ill. 2d at 530-31.
Thus, according to the majority, a judgment rendered by a court lacking the inherent power to make or enter the particular order involved is not “void” but merely “voidable.”
Assuming, however, that Mitchell created some confusion as to the continued validity of the requirement that a court have inherent power to make or enter the particular order involved, such confusion was dispelled in City of Chicago v. Roman, 184 Ill. 2d 504, 510 (1998), a decision issued 10 months after Mitchell, and one which the majority fails to acknowledge. In Roman, 184 Ill. 2d at 510, this court reiterated that “[a] void judgment is one entered by a court that lacks, inter alia, the inherent power to make or enter the particular order involved.” See also People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 401 (2001) (“Because the concurrent sentences imposed upon defendant by the circuit court were not authorized by section 5-8-4(b), those sentences are void“).
I submit that Mitchell is not this court‘s latest pronouncement on jurisdiction. I also submit that it is the majority, not this dissent, which has failed to acknowledge recent precedent of this court.
The majority offers two distinctions. First, the majority states:
”Davis discusses jurisdiction ‘in the context of criminal proceedings.’ Davis, 156 Ill. 2d at 156. Criminal proceedings that involve the power to render judgments or sentences address a separate set of concerns not at issue in the present matter.” 197 Ill. 2d at 532.
The majority does not elaborate on the nature of these
I note that Davis cites Thayer v. Village of Downers Grove, 369 Ill. 334, 339 (1938), a case involving special assessments and bonds, in support of the proposition that “the power to render the particular judgment or sentence is as important an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction.” Davis, 156 Ill. 2d at 156. I also note that Davis cites Armstrong, 300 Ill. at 142-43, a mechanics’ lien case, in support of the proposition that “a judgment or decree may be void where a court has exceeded its jurisdiction.” Davis, 156 Ill. 2d at 156. Thus, Davis does not draw a distinction between criminal and civil proceedings and does not provide support for the proposition advanced by the majority.
Further, Mitchell, 181 Ill. 2d 169, the centerpiece of the majority‘s analysis on jurisdiction, does not support a distinction between jurisdiction in criminal and civil proceedings. At issue in Mitchell was the validity of a child support order which expressed the support level as a percentage of income, instead of a dollar amount. As noted above, Mitchell relied primarily upon Davis in its discussion of jurisdiction. Thus, Mitchell, a civil case, relied upon the holding of Davis, a criminal case, without drawing any distinction between civil and criminal proceedings.
McKoski, 195 Ill. 2d at 401, Roman, 184 Ill. 2d at 510, Arna, 168 Ill. 2d at 113, and Davis, 156 Ill. 2d at 156, all stand for the proposition, as stated in Roman, that: “A void judgment is one entered by a court that lacks, inter alia, the inherent power to make or enter the particular order involved.” This holding cannot be overlooked or disposed of on the ground that Davis was a criminal proceeding.
“The dissent mistakenly relies upon a rule of law not applicable to the present circumstances. The ‘inherent authority’ requirement existed before reform to the judicial system in 1964. Effective January 1, 1964, an amendment to article VI replaced limited jurisdiction: ‘Circuit Court[s] shall have unlimited original jurisdiction of all justiciable matters.’
Ill. Const. 1870, art. VI, § 9 (amended 1964) ; accordIll. Const. 1970, art. VI, § 9 (‘Circuit Courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction‘). This amendment created a single integrated trial court vested with jurisdiction to adjudicate all controversies. [Citation.] Thus, the ‘inherent power’ requirement applies to courts of limited jurisdiction and administrative agencies.” 197 Ill. 2d at 529-30.
The majority concludes that: “a circuit court is a court of general jurisdiction, which need not look to the statute for its jurisdictional authority.” 197 Ill. 2d at 530.
This court has rejected the notion that a court of general jurisdiction, which derives its jurisdiction from the constitution, may proceed in derogation of statutory authority. In In re M.M., 156 Ill. 2d at 65, this court observed: “[I]t is by reason of our constitution that our circuit courts acquire power to adjudge ***.” However, “it is by reason of the statute that the justiciable matter exists,” and the circuit court must proceed within the strictures of the statute. In re M.M., 156 Ill. 2d at 65-66.
The majority misapprehends my dissent. The majority states:
“The dissent maintains that the trial court lacked authority to order the sale because it failed to comply with the Act, and that this rendered the judgment ‘void.’ According to the dissent, failure to follow the Act is fatal to the circuit court‘s jurisdiction. The Act, the dissent argues, gives the circuit court the ‘inherent authority’ to adjudicate the controversy and, therefore, failure to follow procedure under the Act divests the court of jurisdiction and renders the order ‘void.’ ” 197 Ill. 2d at 529.
I make no pronouncement in my dissent as to the validity of the circuit court‘s order and the resultant sale. My objective is more modest. I merely ask that the majority address Rosemary‘s contention that the circuit court‘s judgment, and the sale pursuant thereto, were void because the circuit court failed to comply with the Act in several aspects. The majority, however, “declines to address or outline those irregularities because they are secondary to Rule 305(j).” 197 Ill. 2d at 529.
B. Fraud in Sale
In her appeal, Rosemary suggested that a fraud was perpetrated in the sale of the property to Moser. She directed this court‘s attention to Moser‘s access to information regarding the other contracts to purchase the property; the circumstances surrounding Moser‘s last minute contract to purchase the property; the lack of notice to defendants regarding Moser‘s contract to purchase the property; the representations made to Inland that
The majority does not give voice to, or acknowledge Rosemary‘s argument in any way. I am of the opinion, however, that this court has an affirmative duty to address this argument, for, if the argument is meritorious, it obviates all reasons for extending Rule 305(j) protection to this sale.
From my review of the record, this case appears troubled by irregularities. Plaintiff‘s complaint for partition was not verified as required by section 17-101 of the Act.5 See
These irregularities aside, the circuit court ordered the sale of the property as one unit. The property consisted of three parcels of land, with extensive acreage.
“It would seem, that when several distinct tracts of land are ordered to be sold by the master, under a decree, it is the duty of that officer to sell each tract separately, unless it is evident that the land will be more valuable in one than in several tracts. [Citation.] It is believed that this rule is of general if not uniform application. *** When several tracts of land are sold en masse, for a gross sum, on the same biddings, the presumption is, that it must have been sold for a smaller amount than they would have brought had each tract been offered separately. When offered en masse, persons of limited capital are necessarily precluded from competing at the sale. And when such a sale is made, and an objection is interposed on that ground, to its confirmation, it will be set aside; unless the evidence clearly shows that it has produced more money than it would have done had it been offered in separate parcels.” Meeker, 25 Ill. at 285.
See also Bowen v. Bowen, 265 Ill. 638, 640 (1914) (“It is the duty of the master in making a sale to offer the land in parcels if the same is susceptible of division. If the master fails in the performance of his duty in this regard and the lands are thereby sold for an inadequate price the sale will be set aside upon a proper showing“).
The circuit court ordered the sale of the property as one unit even though the evidence showed that it would take longer to sell the property as a unit, and the property would fetch a higher price if the parcels were sold individually. This irregularity in the sale of the property, along with the others noted above, fuels concerns that the interest of defendants in the property was not protected.
“In conducting judicial sales good faith must be observed, as well by the purchaser as by the officer, intrusted by the court and the law, to enforce its judgments and decrees, in that mode. The rights of all parties to the proceeding must be regarded and properly protected. When, by a violation of the requirements of the law, by the officer conducting a sale, or by the purchaser at the biddings, the rights of the owner are sacrificed or injuriously affected, the court will interpose, and set aside the sale, and require it to be again offered. Any fraud by the purchaser, by which competition is prevented, or any neglect of duty on the part of the officer producing that result, is regarded as sufficient grounds to order a re-sale.” Meeker, 25 Ill. at 284.
And, in Tibbs, this court observed:
“When it is considered, that titles to valuable lands can be divested by this statutory proceeding, it is essential the statute should be observed, the courts not tolerating any essential departure from it.” Tibbs, 27 Ill. at 128.
I could not agree more with this court‘s assessment that the authority to partition lands also entails a duty to protect the rights and interest of all parties to the lands.
The majority does acknowledge my concerns regarding the possibility of fraud in this matter. In footnote 4 of the opinion, the majority states:
“The dissent also maintains that additional irregularities suggest fraud in the sale. The dissent fails to explain how this overcomes Rule 305(j) and Rosemary‘s failure to file a motion to stay in the appellate court.” 197 Ill. 2d at 527.
Since the majority requests an explanation, I provide one. This court is a court of equity and justice; this court has an affirmative duty not to condone fraud. Litigants seeking the protection of this court must do equity. Likewise, under our Rule 305(j), a purchaser seeking the protection of this court must have acted in good faith in the purchase of the property.
This court affords protection to bona fide purchasers at judicial sales because these purchasers rely upon the
This court has long espoused the principle that a party may obtain relief, on the ground of fraud, against a void as well as a voidable judgment. Elting v. First National Bank of Biggsville, 173 Ill. 368, 391 (1898), citing Nelson v. Rockwell, 14 Ill. 375 (1853). The majority eschews this principle without explaining why this court should place its imprimatur upon, and afford protection to, a sale which may be fraudulent.
“Public policy of this state supports our conclusion. Illinois law protects the integrity and finality of property sales, including judicial sales. [Citations.] Indeed, it extends this protection to purchasers who without notice at the time of the purchase buy in good faith. This finality and permanence is relied on by both purchasers and others in connection with the purchase of the property, including financial institutions, title insurers, realtors, and tenants. Absent this policy, no person would purchase real property involved in a judicial proceeding, if afterwards he incurred the hazard of losing the property due to facts unknown to him at the time of the sale.” 197 Ill. 2d at 528-29. (Emphases added.)
Thus, the majority recognizes that Illinois law affords protection to good-faith purchasers, that is “purchasers who without notice at the time of the purchase buy in good faith.” Further, the majority recognizes that this court extends protection to a good-faith purchaser in order to protect the purchaser from the “hazard of losing the property due to facts unknown to him at the time of the sale.” However, the majority refuses to address Rosemary‘s contention that the sale of the property was fraudulent. Instead, the majority extends the protection of our Rule 305(j) to Moser‘s purchase of the property. The inconsistency could not be more apparent.
CONCLUSION
Rosemary argued that the judgment of partition, and the sale pursuant thereto, were void because the circuit court did not comply with the requirements of the Act. The majority answers that Rule 305(j) precludes Rosemary from contesting the validity of the partition sale. However, Rosemary‘s argument called into question
In addition, Rosemary questioned whether the sale of the property to Moser was fraudulent. While I do not imply that the sale was fraudulent, the record presents sufficient facts to merit consideration of this issue. In the event due consideration leads to the conclusion that the sale of the property to Moser was fraudulent, I, for one, could not endorse or protect the sale.
I believe this court is duty-bound to protect the rights of all parties to the partition action. The rights of one owner must not be sacrificed or injuriously affected to benefit another. Likewise, the rights of the owner must not be compromised to benefit one who is not a good faith purchaser at a judicial sale. Where it appears that the party seeking partition of the land has colluded with the purchaser to effectuate a fraudulent purchase, that purchase must be set aside.
This court can only fulfill its responsibilities to the owners of the land by examining questions of jurisdiction, and exhibiting intolerance to all manners of fraud and collusion. The majority believes otherwise. In extending Rule 305(j) protection to the present sale, the majority overrules long settled precedent regarding the elements of jurisdiction, and clarifies that fraud is not a sufficient ground to withhold Rule 305(j) protection from a purchaser. My disagreement could not be greater. Accordingly, I dissent.
JUSTICES MCMORROW and KILBRIDE join in this dissent.
Notes
Section 12-149 contains only one discernable difference: it requires jurisdiction in the circuit court, an implicit requirement under Rule 305(j).“The right, title and interest of any purchaser acquired at a sale made under or pursuant to any judgment in a proceeding in which the court had jurisdiction of the subject matter and of the parties, and who was not a party to such proceeding *** shall not be affected by any reversal, modification or order setting aside such judgment made in any proceeding to review such judgment, unless at the time of such sale, assignment or pledge, an appeal was pending which operated as a stay of enforcement of the judgment ***.”
735 ILCS 5/12—149 (West 1998).
Rosemary contended during oral argument that the Kendall County court lacked jurisdiction because it rendered “erroneous orders and judgments.” Even if Rosemary‘s contention that the trial court rendered erroneous judgments is correct, a circuit court does not lose jurisdiction because it made a mistake in determining the facts, the law, or both. In re Marriage of Mitchell, 181 Ill. 2d 169, 174-75 (1998). Further, under the Illinois Constitution, circuit courts are courts of general jurisdiction.
The dissent also maintains that additional irregularities suggest fraud in the sale. The dissent fails to explain how this overcomes Rule 305(j) and Rosemary‘s failure to file a motion to stay in the appellate court.