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Federal Sign & Signal Corp. v. Czubak

OPINION FILED JANUARY 18, 1978.

FEDERAL SIGN & SIGNAL CORPORATION, PLAINTIFF-APPELLEE,

v.

BARRY CZUBAK, D/B/A G & W BEAUTICIANS SUPPLY HOUSE AND THE ABBEY BEAUTY SALON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MEYER H. GOLDSTEIN, Judge, presiding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Defendant appeals from an order denying his petition under section 72 of the Civil Practice Act to set aside a judgment entered for plaintiff. Ill. Rev. Stat. 1975, ch. 110, par. 72.

Plaintiff filed a complaint against defendant to collect money allegedly due under several written agreements which obligated the plaintiff to maintain signs for defendant in return for monthly rental payments. On September 8, 1975, plaintiff filed a motion for summary judgment and defendant filed an answer in opposition. Plaintiff's motion for summary judgment was granted on September 25, 1975, by circuit court Judge Meyer H. Goldstein. Although a law clerk of defendant's counsel was present at this hearing, neither defendant nor his counsel was present.

Defendant filed a petition to vacate this judgment more than 30 days after it was entered. Judge Goldstein denied this petition on November 21, 1975. Defendant next filed two petitions on March 25, 1976. One was entitled, "Petition to Vacate Summary Judgment" and the other, "Petition Under Section 72 to Vacate ex parte Judgment Entered September 23, 1975." The latter petition incorporated by reference the other petition filed on the same date. Both petitions were filed more than 30 days after entry of the summary judgment, and consequently a motion to vacate would not have been timely. (Ill. Rev. Stat. 1975, ch. 110, par. 68.3.) The petitions therefore must be considered as a section 72 petition to vacate the September 23, 1975, judgment. On March 25, 1976, circuit court Judge Charles J. Grupp entered an order denying the petition. On April 21, 1976, plaintiff filed another petition identical to the one filed on March 25, 1976. This was denied by Judge Goldstein in an order of May 12, 1976, from which defendant appeals.

Plaintiff filed a motion in this court, which was ordered taken with the case, to dismiss the appeal, contending defendant did not file a notice of appeal from either the September 23, 1975, judgment or the order entered March 25, 1976, within 30 days of their entry as required by Supreme Court Rule 303(a). (Ill. Rev. Stat. 1975, ch. 110A, par. 303(a).) In response, defendant contends that the September 23 judgment was legally void and could, therefore, be attacked by successive motions in the trial court at any time even though the time limits for appeal had lapsed.

• 1 A void judgment may be attacked and vacated at any time. (Fox v. Department of Revenue (1966), 34 Ill.2d 358, 361, 215 N.E.2d 271; Cockrell v. Smith (1975), 27 Ill. App.3d 986, 327 N.E.2d 110; Lebanon Trust & Savings Bank v. Ray (1973), 10 Ill. App.3d 345, 347, 293 N.E.2d 623.) The attack may be either direct or collateral. An application to vacate a judgment made within 30 days of entry is a direct attack; if made after the expiration of the 30 days, it is a collateral attack. (Chiaro v. Lemberis (1960), 28 Ill. App.2d 164, 169, 171 N.E.2d 81.) Thus, if the September 23, 1975, judgment was void, defendant could use successive section 72 motions to attack it without losing his right to appeal. However, a void judgment is different from one which is voidable or erroneous. A judgment is void where there is a want of jurisdiction over the person or subject matter, or where the judgment was procured by fraud. (Cockrell; Lebanon, at 348; Parker v. Board of Trustees (1966), 74 Ill. App.2d 467, 469, 220 N.E.2d 258.) A judgment which is merely erroneous is not void and is not subject to collateral attack. As stated in Parker, at 469:

"It is the established law in Illinois that a judgment rendered by a court having jurisdiction of the parties and the subject matter is not open to impeachment in any collateral action, except for fraud in its procurement; and, even if the judgment is voidable and so illegal or defective that it would be set aside on a proper direct application, it is not subject to collateral attack so long as it stands in force."

The initial inquiry to be made is whether the September 23 judgment is void. Defendant contends that it is for two reasons. The first argument he advances is that the trial court, on September 23, 1975, did not enter judgment on the motion for summary judgment but in fact conducted a trial of the case without notice to the defendant. Defendant relies on the half-sheet of the case which was stamped by the circuit court clerk as follows:

"Trial exparte by court finding issue versus defendant:

Barry Czubak

Damages Forty nine hundred eighty .75 $4980.75 Judgment on finding versus defendant Barry Czubak Forty nine hundred eighty 75 dollars and costs $4980.75."

He also states that the following language from the draft order entered on September 23, 1975, indicates that an ex parte trial was held:

"MOTION SUMMARY JUDGMENT.

Now comes the Plaintiff in this cause, the Defendant being absent and not represented, and thereupon this cause comes on in regular course for trial before the Court without a jury, and the Court having heard the evidence and the arguments of counsel, and being ...


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