Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Irving v. Rodriquez

SEPTEMBER 21, 1960.

LESTER IRVING, ADMINISTRATOR OF THE ESTATE OF JULIE ANN IRVING, DECEASED, PLAINTIFF-APPELLANT,

v.

ELIBORIO RODRIQUEZ AND MARTHA RODRIQUEZ, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of DuPage county; the Hon. WILLIAM C. ATTEN, Judge, presiding. Reversed and remanded with directions.

SPIVEY, J.

Plaintiff, Lester Irving, as Administrator of the Estate of Julie Ann Irving, deceased, commenced this action in the Circuit Court of DuPage County on January 11, 1957 to recover damages for the wrongful death of Julie Ann Irving. Eliborio Rodriquez and Martha Rodriquez were made parties defendant.

The complaint alleges in part that defendant Eliborio Rodriquez, "acting as an agent for the defendant, Martha Rodriquez was driving an automobile north on said York Road, and he then and there owed a duty to pedestrians lawfully on said highway to use reasonable care for their safety." The complaint further alleges that notwithstanding said duty, Eliborio Rodriquez was guilty of certain improper acts or omissions which were the direct and proximate cause of the death of Julie Ann Irving while he was driving said vehicle. Judgment is prayed against the defendants.

Personal service of summons was had upon both defendants on January 14, 1957 as evidenced by the sheriff's return. Neither defendant entered his or her appearance, and upon a timely motion made, they were found to be in default.

On April 24, 1957, a hearing was had upon the question of damages. At the conclusion of the hearing the court announced that there would be a finding for the plaintiff and that there will be a judgment on the finding for $20,000.00. A formal written order apportioning the judgment between the next of kin and ordering an execution to issue was entered on May 24, 1957.

On June 1, 1959, the court granted both defendants leave to file their joint motion to vacate and set aside the judgment and to file their respective petitions in support thereof, which were filed on the same day. Answers to the petitions were filed on behalf of the plaintiff.

On the issues so joined, the court, after an appropriate hearing, denied the petition of Eliborio Rodriquez to vacate and allowed the petition of Martha Rodriquez to vacate the judgment as to her on the ground that the judgment as to her was void. The court held that the allegation in the complaint attempting to charge Martha Rodriquez, unsupported by any testimony, was insufficient in law to state a cause of action.

Plaintiff appeals from that part of the order holding the judgment void as to Martha Rodriquez and vacating the judgment as to her.

The briefs of both parties confine the issue on appeal to whether or not the allegations of the complaint as to agency, unsupported by any evidence upon that subject, will support the default judgment.

Section 72 of the Civil Practice Act (Chap. 110, Sec. 72, Ill. Rev. Stat. 1959) provides for relief from final orders, judgments, and decrees after thirty days from the entry thereof by petition as provided in that Section. Sub-section 3 of Section 72 provides that the petition must be filed not later than two years after the entry of the order, judgment, or decree. The Courts of Illinois have held this section requiring the petition to be filed within two years to be mandatory. Morgan v. People, 16 Ill.2d 374, 158 N.E.2d 24, and Stern v. Sheffield, 2 Ill. App.2d 311, 120 N.E.2d 62.

Sub-section 7 of Section 72 provides, "Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief." Obviously, the judgment entered against Martha Rodriquez in the instant case must be void to afford the relief prayed and the trial court so found. However, we are unable to agree that the judgment was void.

A void judgment as distinguished from a voidable judgment may be vacated at any time even after the expiration of the prescribed period within which judgments ordinarily may be vacated. The duty to vacate a void judgment is based upon the inherent power of the court to expunge from its records void acts of which it has knowledge. The doctrines of laches and estoppel do not apply. Stern v. Sheffield, 2 Ill. App.2d 311, 120 N.E.2d 62.

Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of the person or subject matter and judgments procured through fraud. Ward v. Sampson, 395 Ill. 353, 70 N.E.2d 324; I.L.P. Judgments, Sections 174 and 175. They may be attacked directly or collaterally. Escue v. Nichols, 335 Ill. App. 244, 81 N.E.2d 652, Rompza v. Lucas, 337 Ill. App. 106, 85 N.E.2d 467.

A defectively stated cause of action will not destroy jurisdiction if the court has jurisdiction of the subject matter and has acquired jurisdiction of the parties. Baker v. Brown, 372 Ill. 336, 23 N.E.2d 710; Hiot v. Snodgrass, 315 Ill. 548, 146 N.E. 562; ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.