ILLINOIS APPELLATE COURT FIRST DISTRICT (2ND DIVISION)
OCTOBER 23, 1973.
UPTOWN FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, PLAINTIFF-APPELLEE (JOHN SKACH ET AL., RESPONDENTS-APPELLEES,)
ROGER J. WALSH ET AL., DEFENDANTS (JACK WALSH ET AL., DEFENDANTS-APPELLANTS.)
APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Uptown Federal Savings and Loan Association (hereinafter Uptown) brought an action, in the circuit court of Cook County, to foreclose a mortgage on certain property in Lombard, Du Page County, Illinois, naming appellants Jack Walsh and Patricia Walsh (hereinafter appellants), among others, as parties defendant. The action resulted in a decree of foreclosure and sale and John Skach and George Javaras (hereinafter purchaser) subsequently purchased the premises at a sheriff's sale. Nearly one year later appellants filed a petition to vacate the decree of foreclosure and sale, alleging that they had not been personally served with summons in the foreclosure suit and prayed that the decree of foreclosure and sale be declared void for lack of jurisdiction. After a hearing, the trial court dismissed appellants' petition to vacate the decree and they now appeal from that ruling.
The facts giving rise to this appeal can be more easily comprehended when noted in the chronological order of their occurrence.
June 25, 1970 Uptown, as mortgagee, initiated proceedings to foreclose the mortgage on the subject property against Roger J. Walsh and Adeline Walsh, as mortgagors, and against appellants, among others, as parties with an interest in the premises subordinate to that of Uptown.
July 16, 1970 The duplicate original summons returned by the deputy sheriff of Du Page County was filed with the clerk of the circuit court of Cook County, showing, inter alia, personal service of summons on (appellants) Jack Walsh (a brother of Roger J. Walsh) on July 1, 1970, and substituted service of summons on Patricia Walsh on July 1, 1970 by leaving a copy with her husband Jack Walsh and by mailing a copy to the wife at her usual place of abode on July 7, 1970.
July 17, 1970 An amended complaint to the mortgage foreclosure action filed.
Oct. 26, 1970 Second amended complaint to mortgage foreclosure action filed.
Jan. 12, 1971 Order entered wherein the trial court found that due notice of the pending suit had been given to six named defendants *fn1 and unknown owners by publication, and that the remaining named defendants, including appellants, had been personally served with summons. The court further found that all the defendants, save one, had failed to file an answer or otherwise make an appearance, decreed that each such defendant was in default, and that the second amended complaint be taken as confessed.
On the same date the court entered a decree of foreclosure and sale wherein it found that each defendant had been either personally served or served by publication. The decree further provided that the sheriff of Cook County sell the subject premises at a public auction to the highest bidder unless the amount found due was paid to Uptown within ten days from the date of entry of the decree. The decree then gave defendants, and all those claiming under them, 12 months after the date of service upon the defendants (Nov. 5, 1970) to redeem the premises, barring any attempt to exercise that right thereafter. In the event the premises remained unredeemed, the decree directed the sheriff to execute and deliver a deedof conveyance of the premises to the holder of the certificate of sale upon production of that document.
Jan. 14, 21, Notice of the sheriff's sale of the subject premises published 28, 1971 in the Chicago Daily Law Bulletin.
Jan. 20, 27, Notice of the sheriff's sale of the subject premises published Feb. 3, in the Du Page County Times. 1971
Feb. 9, 1971 Sheriff of Cook County sold the premises to purchaser at a public auction for the amount of $21,700.36.
Feb. 17, 1971 Certificates of publication of the notices of the sheriff's sale filed with the clerk of the court. The sheriff of Cook County also filed his report of sale and distribution which noted, inter alia, that the sheriff had executed and delivered a certificate of sale to the purchaser which he subsequently recorded. The court then entered an order approving the sheriff's report of sale.
Nov. 8, 1971 No redemption having been made, the sheriff of Cook County executed and delivered a sheriff's deed to purchaser, which was recorded in the office of the recorder of deeds of Du Page County.
Jan. 11, Appellants filed a petition to vacate the decree of 1972 foreclosure and order of sale alleging that they had been occupying the premises as a residence and domicile for eight years, that the market value of the premises was approximately $100,000, that they were not personally served with summons and that no personal service of process could have been made upon them since they were under 24-hour protective custody from January, 1970 until March, 1971. Therefore, they were without notice of the pending action.