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Farley v. Blackwood

OPINION FILED JANUARY 13, 1978.

PHIL FARLEY, PLAINTIFF-APPELLEE,

v.

LARRY B. BLACKWOOD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EUGENE R. WARD, Judge, presiding.

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

In this matter, defendant filed a notice of appeal from a default judgment entered in a forcible entry and detainer proceeding awarding possession to plaintiff and from orders denying a motion for a stay of execution and to vacate the default judgment. On appeal, the following issues are presented: (1) whether the default judgment is void for want of in personam jurisdiction; (2) whether it was error to have denied defendant's motion for a stay of execution; and (3) whether defendant's motion to vacate the default judgment was improperly denied.

Defendant leased an apartment from plaintiff for a one year term beginning June 1, 1975. Before its termination on May 31, 1976, plaintiff sent defendant a new one-year lease at an increased rental of $20 per month. The letter enclosing the new lease stated that if it was not acceptable, the existing lease would be extended for one month. When defendant refused to execute the new lease or to pay the June rent, plaintiff filed a forcible entry and detainer action for nonpayment of rent. Defendant then filed an action seeking declaratory judgment and damages for alleged nonrepairs of the apartment and for building code violations. An agreement was then entered into by the parties under which plaintiff was to make certain repairs, defendant was to tender rent for June and July at the previous rate, and both actions were to be dismissed. Plaintiff dismissed his action, but defendant's suit remains pending, as he continued to dispute the rent increase on the basis that the terms of a "regulatory agreement" with the United States Department of Housing and Urban Development (HUD) prohibited plaintiff from increasing without HUD approval.

Thereafter, on August 4, plaintiff served notice that the tenancy would terminate within 60 days, and he refused to accept the rent tendered by defendant for the months of August, September and October. On October 6, plaintiff filed another forcible entry and detainer action for possession of the premises. Although a summons had been issued, the sheriff's return thereon reveals that he was unable to personally serve defendant. However, because the court's half-sheet record disclosed that his appearance had been filed, a default was entered and, in an ex parte proceeding on October 21, 1976, gave judgment to plaintiff and, at the same time, stayed the writ of restitution for 15 days.

On November 12, defendant, an attorney appearing pro se, filed a general appearance, a verified motion to vacate the default judgment, and a motion to stay execution pending a hearing on the vacature motion. On the same day, a hearing was held and the motion to stay execution was denied. Defendant thereupon requested an immediate hearing on the motion to vacate, in which he asserted that the default judgment was void for want of personal jurisdiction; that another action was already pending between the parties for the same cause; and that he was entitled to possession as a holdover tenant. The docket sheet indicates that after the trial judge "heard much argument from both sides," the motion to vacate was denied.

This appeal followed, and after the docketing of the record here, plaintiff moved to dismiss the appeal because of defendant's failure to include a report of proceedings and to file an abstract or excerpts. This motion was taken with the appeal.

OPINION

• 1 We first direct our attention to the motion to dismiss, and we will confine our discussion in this regard to the failure to file a report of proceedings, as we will grant the request of defendant to excuse the filing of an abstract or excerpts because of the minimal number of pages in the record itself and because extensive record page references are included in defendant's brief.

Supreme Court Rule 323 (Ill. Rev. Stat. 1975, ch. 110A, par. 323) requires the appellant to provide this court with a report of proceedings or an acceptable substitute thereof. (Lill Coal Co. v. Bellario (1975), 30 Ill. App.3d 384, 332 N.E.2d 485; La Pierre v. Oak Park Federal Savings & Loan Association (1974), 21 Ill. App.3d 541, 315 N.E.2d 908.) In Lill Coal Co., the court stated:

"It is a basic principle of appellate practice that a party who brings a cause to a reviewing court must present in the record the proceedings to show the error complained of." 30 Ill. App.3d 384, 385, 332 N.E.2d 485, 486.

• 2, 3 Even where no verbatim transcript is available, it is incumbent upon appellant to prepare a report of proceedings referred to as a "bystander's report" which must be prepared in accordance with Supreme Court Rule 323(c). (Ill. Rev. Stat. 1975, ch. 110A, par. 323(c); see also Angel v. Angelos (1976), 35 Ill. App.3d 905, 342 N.E.2d 748.) The orderly administration of the affairs of this court necessitates that its rules and precedents be followed (Lill Coal Company; Biggs v. Spader (1951), 411 Ill. 42, 103 N.E.2d 104, cert. denied (1952), 343 U.S. 956, 96 L.Ed. 610, 72 S.Ct. 180), and because defendant has failed to comply with these basic rules of appellate procedure, this appeal is not properly before us.

Having so determined, we are under no obligation to discuss the merits of this case, but because a bystander's report of proceedings was filed by appellee, we will alternatively consider this appeal on its merits. See Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App.3d 719, 369 N.E.2d 1346.

• 4, 5 Initially, defendant contends that the trial court lacked personal jurisdiction over him at the time the default judgment was entered. In order for defendant to attack the in personam jurisdiction of the court, he must file a special and limited appearance, along with an appropriate motion to quash either the summons or the sheriff's certificate of service. (Hawes v. Hawes (1970), 130 Ill. App.2d 546, 263 N.E.2d 625; Drexel Savings & Loan Association v. McCall (1969), 107 Ill. App.2d 30, 205 N.E.2d 900.) To appear for any other purpose other than to object to personal jurisdiction, before making a special appearance, waives the jurisdictional objection and submits defendant to the personal jurisdiction of the court. Lord v. Hubert (1957), 12 Ill.2d 83, 145 N.E.2d 77.

In the instant case, the bystander's report discloses that a general appearance was filed by defendant on October 14, 1976, one week prior to the entry of the default. Although defendant states there was no appearance at that time, we note that the date of the appearance was handwritten into the typewritten bystander's report by the trial judge, who placed his signature next to the date to verify that he had written it. Furthermore, this date is substantiated by the half-sheet record which indicates that an ...


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