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Lescher v. Barker

OPINION FILED FEBRUARY 2, 1978.

HENRY WM. LESCHER, EX'R OF THE ESTATE OF APE LUCIA ST. GEORGE, DECEASED, PETITIONER-APPELLEE,

v.

ANN ST. GEORGE BARKER, RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE LINN delivered the opinion of the court:

Respondent, Ann St. George Barker, appeals from a judgment order entered in the probate division of the circuit court of Cook County compelling respondent to vacate the house of respondent's deceased mother, Ape Lucia St. George. The judgment order was entered pursuant to a complaint for possession filed in the probate proceedings by Henry Wm. Lescher, executor of the estate of Ape Lucia St. George.

Respondent contends that the trial court lacked personal jurisdiction over her and also lacked subject matter jurisdiction and, therefore, the trial court's judgment order should be reversed.

We disagree with the contentions of the respondent and, accordingly, we affirm the decision of the trial court.

On June 30, 1976, Ape Lucia St. George died testate. Immediately thereafter and prior to July 27, 1976, the respondent, one of the three surviving children of the decedent, moved into her mother's unoccupied residence in Wilmette, Illinois.

On July 27, 1976, Lescher, named as executor and trustee under the will of the decedent, filed a petition for probate of the will and for letters testamentary. The petition was allowed. On August 24, 1976, the respondent filed her appearance in the probate proceedings.

On November 17, 1976, the executor filed a supplemental complaint in the probate division seeking possession of the decedent's residence. The complaint alleged, inter alia, that the residence was one of the assets of the decedent's estate; that respondent was in possession of the premises; that the executor had often asked the respondent to vacate the premises, but that she had refused to do so; and that it was necessary for the proper administration of the estate that the executor have possession of the residence so that it could be shown to prospective purchasers. Notice of the complaint for possession was mailed to the respondent's attorney of record in the probate proceedings, but no summons was issued or served upon respondent with regard to the complaint for possession.

On November 17, 1976, respondent filed her special and limited appearance objecting to the jurisdiction of the court over her for purposes of the complaint for possession on the grounds that no service of process had been made upon her. The trial court denied respondent's special appearance and found that it had jurisdiction over her. The respondent then filed her answer to the complaint for possession denying the material allegations of the complaint and affirmatively alleging that the complaint failed to state a cause of action under the Probate Act (Ill. Rev. Stat. 1975, ch. 3, pars. 16-1 and 20-1), and that the probate division of the circuit court had no jurisdiction over the respondent, respondent never having been properly served with process.

On December 9, 1976, the trial court entered judgment in favor of the executor for possession of the residence property and ordered the respondent to vacate the premises within three days. On motion of the respondent, the court stayed the enforcement of the judgment order pending the disposition of the case on appeal. The court also ordered the respondent to post bond in the amount of $5,000, representing reasonable rental for the use and occupation of the property. Thereupon, respondent posted bond and proceeded with this appeal.

OPINION

Respondent contends that the executor's complaint fails to state a cause of action granted to the executor under the Probate Act and, thus, the probate division of the circuit court of Cook County lacked jurisdiction of the subject matter of the complaint. This contention is premised on respondent's assertion that the executor's only course of action to acquire possession of real property on behalf of the decedent's estate was to proceed by filing a separate action pursuant to the Forcible Entry and Detainer Act. (Ill. Rev. Stat. 1975, ch. 57, pars. 1 through 22.) Additionally, respondent contends that the probate division lacked personal jurisdiction over her because she was not served with process in connection with the complaint for possession.

• 1 Initially, it must be stated that the probate division of the circuit court is a court with subject matter jurisdiction equal to any other division of that court. As divisions of the same constitutional court of general jurisdiction, each division of the circuit court has equal and concurrent subject matter jurisdiction. (Alfaro v. Meagher (1975), 27 Ill. App.3d 292, 326 N.E.2d 545.) The circuit court was established in its present form by amendment to the judicial article of the Illinois Constitution of 1870, effective January 1, 1964. This amendment was re-enacted into the Constitution of 1970. Section 9 of the Judicial Article of 1964 and 1970 provides: "Circuit Courts> shall have original jurisdiction of all justiciable matters * * *." (Ill. Const. 1970, art. VI, § 9.) See People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456; Lopin v. Cullerton (1977), 46 Ill. App.3d 378, 361 N.E.2d 6; Biggs v. Health & Hospitals Governing Com. (1977), ...


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