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In Re Application of County Collector

OPINION FILED SEPTEMBER 6, 1977.

IN RE APPLICATION OF COUNTY COLLECTOR. — (ST. JAMES DORMITORY, INC., PLAINTIFF-APPELLANT,

v.

SITE, INC., ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Jackson County; the Hon. EVERETT PROSSER, Judge, presiding.

MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 13, 1977.

In October 1968, the 1967 tax judgment, forfeiture and redemption record was filed in the Circuit Court of Jackson County, Illinois, and an order was entered directing the sale of all lands and lots returned delinquent for nonpayment of taxes for the year 1967, including the property involved in this case.

On October 14, 1968, the subject property was sold to Tax Security Corporation. Thereafter, on January 12, 1972, the Circuit Court of Jackson County entered an order which found that all notices required by law had been given, and that the petitioner had complied with all provisions of law entitling it to a tax deed for the parcel of real estate.

By mesne conveyances, the property in question was conveyed to respondents-appellees, George Holthusen and Shirley Holthusen.

Thereafter, appellant filed a chancery suit to set aside respondents' title. Summary judgment in that suit was entered in favor of respondents.

On June 2, 1975, a petition to set aside a tax deed which had issued January 12, 1972, was filed by St. James Dormitory, Inc., pursuant to section 72 of the Civil Practice Act on the ground that the tax deed was void as having been procured by fraud and without notice to petitioner. Respondents-appellees filed a motion to dismiss the section 72 petition on September 22, 1975, on the ground that the petition was not timely filed, that the present holders of the tax deed were bona fide purchasers, and that the petition failed to state a claim upon which relief could be granted. On October 10, 1975, Warren St. James as an individual filed a petition for leave to intervene and also a pleading titled "Nature of Action" declaring that his interest in the controversy was due to the fact that he was personally liable as guarantor on the mortgage note ($24,000) which was secured by the property now held by respondents.

On October 16, 1975, the Circuit Court of Jackson County held a hearing which consisted of arguments of counsel on the section 72 petition and respondents' motions to strike and dismiss. At that time the matter was taken under advisement. There is no indication in the record that the court ever considered St. James' petition and accompanying pleading to intervene at this time or any other time.

On May 25, 1976, the court entered its order sustaining respondent's motion to strike and dismiss the petition and ordered appellant's section 72 petition be dismissed solely as to respondents. The court failed at this time to indicate the disposition of Mr. St. James' petition to intervene. The order dismissing the section 72 petition without a hearing forms the basis of this appeal.

• 1 The record is totally silent with respect to Mr. St. James' petition to intervene. The hearing, the order and all the proceedings below focused solely on the section 72 petition. Apparently, Mr. St. James was left standing on the sidelines while the court proceeded to dispose of a matter in which he had a very substantial interest. Mr. St. James had been denied his day in court on this matter. The court has ruled on this matter without the benefit of all of the facts which Mr. St. James may bring to bear on the issues before the court. For these reasons and in the interests of justice and compliance with minimal due process, the order dismissing the section 72 petition should be reversed and an order entered allowing Mr. St. James' petition to intervene.

The rules governing intervention are contained in section 26.1(1) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 26.1(1)), which provides in pertinent part:

"Upon timely application anyone shall be permitted as of right to intervene in an action * * * (c) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or an officer thereof.

(6) An intervenor shall have all the rights of an original party * * *." (Emphasis added.)

It seems quite apparent that Mr. St. James, as guarantor of a mortgage on the subject property in the amount of $24,000, was entitled to intervene in the section 72 action. Mr. St. James is adversely affected by a disposition of property subject to the control of the court. All the prerequisites of the statute being met, Mr. St. ...


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