APPEAL from the Circuit Court of Cook County; the Hon.
CORNELIUS J. COLLINS, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 8, 1974.
Petitioners filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72) seeking to vacate its order of March 2, 1972, which directed issuance of a tax deed, and for other relief. After a hearing, the court denied the petition and specifically found (a) there was no fraud in the procurement of the tax deed, and (b) petitioners did not use diligence in defending against the original tax deed petition or in filing a direct attack thereon.
Petitioners appeal contending: (1) the lack of personal service upon an owner in possession deprived the court of jurisdiction; (2) there was fraud upon the court sufficient to avoid issuance of the tax deed; (3) the failure to give statutory notice was a sufficient ground for relief in a section 72 proceeding; (4) there was an excusable mistake sufficient to avoid the issuance of the tax deed; and (5) the finding that petitioners were not diligent is against the manifest weight of the evidence.
The property at issue is a two-story brick house located at 6439 North New England Avenue in Chicago. Petitioners owned and resided on this property since 1958. In May 1969 the county collector filed an application for judgment and order of sale for special assessments returned delinquent in the year 1969. Respondent purchased the property on May 26, 1969, for non-payment of special assessment warrant 57488 of the City of Chicago, fourth installment, for the sum of $61.94. The end of the period of redemption was extended by respondent from May 26, 1971, to December 27, 1971, pursuant to section 263 of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 744). Respondent on May 11, 1970, purchased the fifth installment of the same special assessment for $65.71. Petitioners did redeem this fifth installment but never redeemed the fourth installment.
On September 9, 1971, respondent filed its petition for tax deed. During the subsequent ex parte hearing on January 14, 1972, David R. Gray, respondent's attorney, testified that there had been no redemption of the fourth installment. He had made an inspection of the pertinent records and found that the parties in interest were the owners, Mr. and Mrs. Donald Follot, and Avondale Savings and Loan Association, as the mortgagee and holder of an assignment of rents for the property. Avondale Savings and Loan Association was personally served on September 21, 1971. He mailed a notice to Mrs. Follot on September 27, 1971. Sidney Olsen, registrar of titles for Cook County, was personally served on September 12, 1971, and Edward Barrett, county clerk of Cook County, was personally served with notice on September 24, 1971.
Robert Brozik testified at the ex parte hearing as a witness for respondent that he was a process server in respondent's employ. He was directed to serve Mr. and Mrs. Follot with notices. On September 21, 1971, he personally served Mr. Follot at 6439 North New England Avenue in Chicago. Mr. Follot accepted the notice and told him he had already received one through registered mail. At this time he asked if Mrs. Follot was at home. Mr. Follot told him she was not at home but that he would accept a copy of it for her. Brozik also explained to the court that he had tried on three occasions, other than September 21, 1971, to serve Mrs. Follot but was unable to do so.
The court was informed that because Mrs. Follot had not been personally served, after the four unsuccessful attempts, notification was given to her by publication and certified mail. The court was told of the publication dates, and the certified mail receipt card was part of the record. In addition, there was evidence that on September 24, 1971, respondent delivered the requisite notices to the clerk of the circuit court for mailing by him. Gray further testified as follows:
"Q. Do you believe you have complied with due diligence in the service of process on all the known parties of interest?
On March 2, 1972, the court found that the period of redemption had expired; all notices required by law had been given; respondent had complied with all provisions of the statute; and the court had jurisdiction. It then ordered the issuance of a tax deed.
On July 19, 1972, petitioners filed their section 72 petition alleging, inter alia, insufficiency of notice; fraud upon the court; lack of due diligence; excusable mistake; and lack of jurisdiction. At the hearing on the petition the following pertinent evidence was adduced: David R. Gray, called as a witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 60), testified that he arranged for service of notice under the relevant statutes; that Mr. Follot was served personally and that in spite of a diligent effort, Mrs. Follot could not be personally served and she was notified by publication and mailing. The publication dates were September 17, 1971, September 24, 1971, and September 27, 1971. He described Mr. Brozik's attempts at personally serving Mrs. Follot. He searched the telephone directories to see if there was another address by which he could personally serve Mrs. Follot. Since he could not personally serve Mrs. Follot, he mailed the notice to Mrs. Follot on September 27, 1971. Respondent had also purchased the fifth installment which he thought was redeemed before December 27, 1971. In November 1971 he had sent the requisite statutory notices with regard to this fifth installment. At the time of the hearing on January 14, 1972, he did not have personal knowledge of the redemption of the fifth installment, but he represented to the court that proof of payment or redemption of any subsequent taxes would be submitted to the court. At the time the transcript was presented to the court for entry of the order directing the issuance of tax deed, the court was informed that the fifth installment had been redeemed. During March 1972 he had several conversations with Donald Follot's mother concerning the property.
Mrs. Follot, a petitioner, testified that she has two school age children living at home and that she works at a nearby cleaning establishment. She first learned some taxes were due on the property in September 1971 when her husband showed her a paper he received through the mail. She subsequently sent for a bill of redemption and received the estimate of redemption through the mail. On November 18, 1971, she sent a money order covering the amount specified by the county clerk. This was the first time she sent in any money. After further notification by the county clerk, she sent in an additional sum of money. She then received a certificate of deposit for redemption and did nothing thereafter. The only notice she received was the one her husband handed to her. On cross-examination she was impeached when she identified her signature on a receipt card which showed a second notice delivered to her on October 18, 1971.
Donald Follot, a petitioner, testified that he was a joint owner of the property. He denied ever receiving personal service of any notice. He received only one notice from the County Clerk and showed it to his wife. He did nothing with respect to payment of either the fourth or fifth installment. On cross-examination he identified his signature on the section 72 petition which states: "* * * that on December 7, 1971, twenty days prior to the expiration of said extension period, DONALD H. FOLLOT took said ...