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City of Chicago v. Cicero

JUNE 30, 1971.

THE CITY OF CHICAGO, PLAINTIFF-APPELLEE,

v.

JOSEPHINE CICERO, DEFENDANT — (MAYE F. EDWARDS, IMPLEADED, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. MURPHY, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court denying a motion to vacate its order giving the City leave to fill in an excavation on the premises of the defendant, Maye F. Edwards.

The defendant was sued by the City of Chicago in an action in chancery for "Fine and Other Relief." Summons was issued on September 7, 1968, with a return date of September 17. The defendant was actually served on September 13, 1968.

The defendant contends on appeal that the ex-parte order of September 17, 1968, is void for want of jurisdiction of the person because the summons was void and, therefore, the order was also void.

The second amended complaint alleged there was an open excavation on the subject property, which was in violation of the Municipal Code of Chicago and

"That on or about June 4, 1968 AND on numerous other occasions the following violations of the Municipal Code of Chicago existed in said property and said violations have not been corrected:

(a) Said building is now in a dangerous condition and a menace to public safety and is being maintained in violation of Sections 39-12, 41-9, 78-3, and 99-4 of the Municipal Code of Chicago and Chapter 24, Section 11-31-1 of the Illinois Revised Statutes."

Also:

"That the levying of a fine is not an adequate remedy for the abatement of a nuisance, and that it is necessary that a temporary and permanent injunction issue and a receiver be appointed to bring the subject property into compliance with the Municipal Code of Chicago."

On September 17, 1968, there was an ex-parte hearing which the defendant did not attend in person, however she sent a friend who asked the court for a continuance, but not being a lawyer, the request was denied and testimony was heard. The court entered an order on September 24, 1968, as a result of the September 17 hearing, granting leave to the City to fill in the excavation and continued the cause to October 1, 1968, for further hearing. On October 1, counsel for defendant filed his general appearance and the matter was continued until October 22. On October 5, the excavation was filled in.

On October 15, the defendant filed her motion to vacate the order of September 17 (entered September 24). An amended motion to vacate was filed on May 22, 1969. The City filed its reply to the amended motion to vacate, and on June 24, the court denied the motion to vacate.

The defendant argues the judgment order was void for want of jurisdiction of the defendant because the summons required her to appear less than 21 days after issuance of the summons. Supreme Court Rule 101(b) provides:

"(1) In an action for money not in excess of $10,000 * * * the summons shall require each defendant to appear on a day specified in the summons not less than 21 or more than 40 ...


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