Christiansen v. Saylor
State: Illinois
Court: 2nd District Appellate
Docket No: 2-97-0742
Case Date: 07/09/1998
No. 2--97--0742
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
SARAH CHRISTIANSEN, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
)
v. ) No. 96--SC--4337
)
PATTI SAYLOR, )
)
Defendant-Appellee )
)
(Ronald E. Kranig and Mark )
P. Mannebach, d/b/a Asset ) Honorable
Recovery Systems, Assignees ) George Bridges
and Plaintiffs-Appellants). ) Judge, Presiding.
________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Assignee-plaintiffs, Ronald E. Kranig and Mark P. Mannebach,
d/b/a Asset Recovery Systems (plaintiffs), appeal from an order of
the circuit court of Lake County that denied their motion to
reconsider a previous order that vacated a default judgment against
defendant, Patti Saylor. The order appealed from also directed a
finding in favor of defendant.
The record reveals the following facts. On December 20, 1996,
the original plaintiff, Sarah Christiansen, filed a small claims
complaint against defendant. The complaint alleged that defendant
owed Christiansen $1,450 for rent due for the apartment located at
932 W. Rollins Road, Round Lake Heights, Illinois.
Summons was issued December 20, 1996. The summons requested
service on defendant c/o Onie Watkins 936 W. Rollins Rd. Apt. 2
Round Lake Heights, IL. The affidavit of service submitted by a
deputy sheriff indicates that defendant was personally served on
December 23, 1996, at 936 W. Rollins Rd., Apt No. 2, Round Lake
Heights, Illinois. The affidavit shows that service was had on a
52-year-old white female.
The summons required defendant to appear before the trial court
to answer the complaint on January 24, 1997. On that date,
defendant did not appear, and the trial court entered a default
judgment against defendant and in favor of Christiansen in the
amount of $1,450.
On April 15, 1997, Christiansen assigned the judgment to
plaintiffs for unspecified valuable consideration. On April 28,
1997, plaintiffs filed a citation to discover assets against
defendant. The affidavit of service for the summons related to the
citation to discover assets shows that defendant was personally
served on May 2, 1997, at 150 Antaris Circle, Round Lake, Illinois.
The affidavit shows that service was had on a 47-year-old white
female.
Defendant responded to the citation to discover assets by
filing a motion pursuant to section 2--1401 of the Code of Civil
Procedure (Code) (735 ILCS 5/2--1401 (West 1996)). The motion
sought to quash service with respect to Christiansen's complaint
against defendant and to vacate the judgment.
Defendant appeared at a hearing on the matter and denied that
she received the summons related to Christiansen's complaint.
Defendant testified that she never lived at 936 W. Rollins, the
address where she was purportedly served. According to defendant,
the first time she heard anything about this case was early in May
1997. She testified that she then immediately contacted the manager
of the apartment complex that was the subject of Christiansen's
complaint (Lynwood Apartments) and established that she did not owe
Lynwood Apartments any rent. Defendant acknowledged that she knew
who Christiansen was, but denied owing Christiansen any money.
On cross-examination, defendant denied ever borrowing any money
from Christiansen. Defendant also denied that Christiansen ever
paid any rent for her. Defendant admitted knowing Onie Watkins.
Defendant denied ever living in Watkins' apartment.
Defendant called Beth Braynard to testify at the hearing.
Braynard has been the on-site manager of Lynwood Apartments since
December 1996. Braynard testified that defendant did not owe
Lynwood Apartments or its landlord any money. According to
Braynard, Christiansen was a former manager of Lynwood Apartments.
Braynard did not believe that the owner of Lynwood Apartments had
authorized a suit against anyone for rents due. Braynard testified
that defendant never lived at 936 W. Rollins, the address where
service of Christiansen's summons and complaint purportedly was
served on defendant.
Plaintiffs called Steve Trudeau. Trudeau was the deputy
sheriff who signed the affidavit of service showing that he
personally served Christiansen's summons and complaint on defendant.
Trudeau was not able to identify defendant as the person he served.
Trudeau testified that he knows Onie Watkins and that she was not
the person he served. He also testified that if he had served
Watkins, he would have shown substitute service on the affidavit of
service.
Plaintiffs also called Jordan Primack. Primack was
Christiansen's attorney when she filed the complaint against
defendant. Primack testified that Christiansen did not sue
defendant as an agent for Lynwood Apartments or its owner.
At the conclusion of the hearing, the trial court ruled on the
matter. The court first noted that it had an opportunity to judge
the credibility of the witnesses. The court then found that
defendant had not been served with Christiansen's summons and
complaint. The court entered an order vacating the judgment against
defendant and setting the matter for trial.
Plaintiffs filed a timely motion to reconsider. In the motion,
plaintiffs argued that the trial court's ruling was erroneous
because (1) by making a general appearance defendant waived all
challenges to jurisdictional defects, including the failure of
service, and (2) plaintiffs' third-party rights stemming from their
good-faith purchase of the judgment from Christiansen precluded
vacating the judgment on the basis of defendant's denial of service.
On the same date that plaintiffs filed their motion to
reconsider, the trial court entered an order denying the motion.
The order stated that trial was to begin instanter and that
plaintiffs were unable to continue in that they were not able to put
on any evidence. The order directed a verdict [sic] in favor of
defendant. Plaintiffs' timely appeal followed.
Plaintiffs raise the same issues on appeal that they raised in
their motion to reconsider. Thus, plaintiffs first contend that
defendant waived her right to challenge any jurisdictional defects,
including the failure of service, by making a general appearance.
Defendant responds by conceding that she made a general appearance.
However, defendant contends that her general appearance did not
preclude her from seeking to vacate the judgment on any grounds,
including the failure of service.
It is essential to the validity of a judgment that the court
entering the judgment have jurisdiction of the subject matter of the
litigation and jurisdiction over the parties. State Bank of Lake
Zurich v. Thill, 113 Ill. 2d 294, 308 (1986). Absent a general
appearance, a court can obtain personal jurisdiction only after
proper service of process. State Bank of Lake Zurich, 113 Ill. 2d
at 308. A party over whom a court fails to acquire jurisdiction
may, at any time, either directly or collaterally, attack and vacate
a judgment that the court enters against the party. In re Marriage
of Verdung, 126 Ill. 2d 542, 547 (1989).
A party challenging the jurisdiction of a court prior to the
entry of a judgment must limit his appearance solely to that purpose
by making a special and limited appearance, and, where the party
raises additional defenses, he has made a general appearance and
thereby submitted himself to the court's jurisdiction. Sullivan v.
Bach, 100 Ill. App. 3d 1135, 1140-41 (1981). However, where a
judgment has previously been entered against a party, there is no
need to file a special and limited appearance to challenge past
jurisdiction unless the party also wishes to contest the court's
prospective jurisdiction. Sullivan, 100 Ill. App. 3d at 1141-42.
This is because a general appearance does not submit a party to the
court's jurisdiction retroactively and does not serve to validate
a previous judgment entered without jurisdiction. J.C. Penney Co.
v. West, 114 Ill. App. 3d 644, 647 (1983).
In this case, the trial court entered the judgment against
defendant before defendant made her general appearance, and, when
she made her general appearance, defendant did not challenge the
trial court's prospective jurisdiction. Therefore, defendant's
general appearance did not submit her to the court's jurisdiction
retroactively, and she properly challenged the court's jurisdiction
to enter the judgment against her. Accordingly, plaintiffs'
contention that defendant waived her right to challenge the judgment
on jurisdictional grounds by filing a general appearance is
untenable.
Plaintiffs next contend that the trial court erred in vacating
the judgment because they were third-party purchasers of the
judgment who made their purchase in reliance on the facial validity
of the service of summons on defendant. Plaintiffs argue that the
third-party rights in the judgment that they acquired when they
purchased the judgment cannot be challenged, as defendant has
attempted to do in this case, on the ground of failure of service.
Defendant responds that plaintiffs waived this issue by not
raising it in the trial court. However, the record clearly shows
that plaintiffs raised the issue when they filed their motion to
reconsider in the trial court. We therefore conclude that
plaintiffs did not waive the issue by failing to raise it in the
trial court, and we will address the issue.
In support of their position, plaintiffs cite Janove v. Bacon,
6 Ill. 2d 245 (1955), and Kolmar, Inc. v. Moore, 323 Ill. App. 323
(1944). Plaintiffs' reliance on these cases is misplaced. Unlike
the plaintiffs in Janove and Kolmar, plaintiffs in this case have
not asserted third party rights in a judgment taken upon a
negotiable instrument or in a judgment where title to real property
was at issue. Rather, plaintiffs in this case have merely asserted
third-party rights in a judgment on an unsecured personal debt.
Such a judgment is a mere chose in action, and, therefore the
doctrine of caveat emptor applies to a purchaser of the judgment.
Hinkley v. Champaign National Bank, 216 Ill. 559, 564 (1905).
Because plaintiffs' purchase of the judgment from Christiansen did
not give them rights in anything except the judgment, Janove and
Kolmar are not controlling in this case.
Instead, section 2--1401(e) of the Code is controlling. Section
2--1401(e) embodies the public policy regarding relief from
judgments with respect to third-party purchasers in proceedings,
such as this one, brought pursuant to section 2--1401. Section 2--
1401(e) provides as follows:
(e) Unless lack of jurisdiction affirmatively
appears from the record proper, the vacation or
modification of an order or judgment pursuant to the
provisions of this Section does not affect the right,
title or interest in or to any real or personal property
of any person, not a party to the original action,
acquired for value after the entry of the order or
judgment but before the filing of the petition, nor
affect any right of any person not a party to the
original action under any certificate of sale issued
before the filing of the petition, pursuant to a sale
based on the order or judgment. 735 ILCS 5/2--1401(e)
(West 1996).
Section 2--1401(e) is intended to protect bona fide purchasers of
property from the effects of an order setting aside a judgment
affecting title to the property if the purchaser was not a party to
the original proceeding and lack of jurisdiction did not
affirmatively appear in the record. Mountain States Mortgage
Center, Inc. v. Allen, 257 Ill. App. 3d 372, 380 (1993).
In this case, the order vacating the judgment did not affect
plaintiffs' title or interest in any property. Rather, the order
affected only plaintiffs' interest in a chose in action, the
judgment that they purchased from Christiansen.
The assignment of a judgment does not imply that the judgment
is impregnable. Hinkley, 216 Ill. at 564. An action by an assignee
of a judgment is generally subject to any defense or set-off
existing before the assignment of the judgment. 735 ILCS 5/2--403
(West 1996). A void judgment is subject to collateral attack at any
time, and the judgment may be impeached in any proceeding where a
right is asserted by virtue of the judgment. Reynolds v. Burns, 20
Ill. 2d 179, 192 (1960). Section 2--1401 does not affect[ ] any
existing right to relief from a void order or judgment, or to employ
any existing method to procure that relief. 735 ILCS 5/2--1401(f)
(West 1996).
Under these principles, plaintiffs' third-party rights in the
judgment that Christiansen assigned to them did not preclude
defendant's challenge to the trial court's jurisdiction based on the
failure of service. Consequently, plaintiffs' contention that the
rights they acquired when they purchased the judgment from
Christiansen precluded jurisdictional challenges to the judgment
fails.
In sum, the trial court did not err when it based its decision
to vacate the judgment on defendant's jurisdictional challenge to
the judgment on the ground of the failure of service. The judgment
of the circuit court of Lake County is affirmed.
Affirmed.
McLAREN and HUTCHINSON, JJ., concur.
Illinois Law
Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
> Minimum Wage in Illinois
Illinois Agencies