No. 2--02--0097

Plaintiff, BA Mortgage, LLC, sued defendant, MargaretBurgholzer, to foreclose a mortgage, and obtained a defaultjudgment. Thereafter, defendant appeared and moved to vacate thedefault judgment. The trial court refused to do so. Defendantappeals, contending that the court lacked personal jurisdictionover her because she was never properly served with a summons andcomplaint.

Plaintiff filed its complaint to foreclose the mortgage onDecember 12, 2000. The affidavit of the special process server,Larry Biela, states that on December 28, 2000, he served defendantby leaving a copy of the summons and complaint with defendant's 14-year-old daughter, Samantha Burgholzer. Although the affidavit wasexecuted on December 28, 2000, it states, "Date of Mailing:12/29/2000."

Defendant did not appear and the trial court entered a defaultjudgment. On July 31, 2001, Ronald Moore bid $110,500 for theproperty at a judicial sale. The bid resulted in a surplus of$2,903.29. On August 10, 2001, the court approved the sale andawarded Moore possession.

On October 4, 2001, defendant filed a special and limitedappearance and a motion to dismiss for lack of jurisdiction. Defendant alleged that she never received notice of the foreclosureproceedings and that the return of summons was facially defective. The trial court denied the motion and denied defendant's motion toreconsider. That day, defendant moved for a turnover of the salesurplus to her, which the court granted. Defendant timely appeals.

Defendant contends that the court erred in denying her motionto dismiss for lack of jurisdiction. She argues that the specialprocess server's return was facially defective because it did notstate that he explained to her daughter what the summons was, anddid not clearly state that copies of the summons and complaint weremailed to defendant.

Plaintiff responds that the return of summons was sufficient. Alternatively, plaintiff contends that defendant is estopped toquestion the court's jurisdiction to order the foreclosure and salebecause she accepted the benefits of those orders by accepting thesale surplus. Plaintiff also contends that defendant waived herright to challenge the court's orders by failing to obtain a stayand allowing the third-party purchaser to take possession of theproperty. Because we agree with plaintiff's second contention, weaffirm the circuit court's judgment without reaching the parties'other arguments.

It is well settled that, where a party accepts the benefits ofa decree, he or she cannot "prosecute error to reverse it." Corwinv. Shoup, 76 Ill. 246, 249 (1875); see also Trapp v. Off, 194 Ill.287, 302 (1901); Morgan v. Ladd, 7 Ill. 414, 415 (1845). A partycannot, by his voluntary act, invite the court to exercise itsjurisdiction and at the same time deny that jurisdiction exists. Supreme Hive Ladies of the Maccabees of the World v. Harrington, 227Ill. 511, 525 (1907). Although those cases do not involvechallenges to the courts' jurisdiction, that distinction does nothelp defendant here.

Normally, a general appearance does not submit a party to thecourt's jurisdiction retroactively. Christiansen v. Saylor, 297Ill. App. 3d 719, 723 (1998). However, in some cases, a generalappearance may validate a prior judgment that was void for lack ofjurisdiction. In re Marriage of Verdung, 126 Ill. 2d 542, 547-48(1989); 6 C.J.S. Appearances