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Diaber v. Con/chem

OPINION FILED MARCH 2, 1978.

LEONARD DIABER, PLAINTIFF-APPELLEE,

v.

CON/CHEM, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Madison County; the Hon. MOSES W. HARRISON, Judge, presiding.

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

Plaintiff, Leonard Diaber, filed a six-count complaint in the circuit court of Madison County against defendants, Con/Chem, Inc., Albert Berger and James Meyer. The complaint was filed on March 2, 1977. On April 7, 1977, defendants appeared specially by their attorneys, Goldenhersh and Goldenhersh, and obtained the following order:

"Goldenhersh & Goldenhersh hereby enter their special and limited appearance on behalf of defendants. Defendants given 30 days to take some appropriate action."

On May 6, 1977, defendants filed a written "special appearance and motion to quash service of process" and additionally were granted leave by the court to file affidavits in support of their motion within 10 days of that date. Thereafter on May 24, 1977, plaintiff filed an objection to the defendants' motion on the ground that their appearance of April 7, 1977, constituted a general appearance because of the request for a 30-day extension of time to "take some appropriate action." Argument was had before the court which on July 14, 1977, found that defendants, in securing the April 7, 1977, order, thereby submitted to the jurisdiction of the court. Pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1975, ch. 110A, par. 308), defendants bring this appeal.

• 1 The sole issue presented is whether the defendants' appearance of April 7, 1977, constituted a general or special appearance. Section 20 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 20) provides in part that:

"Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. * * * Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance."

In McKnelly v. McKnelly, 38 Ill. App.3d 637, 639, 348 N.E.2d 500, 502, we stated:

"Any action taken by a litigant which recognizes the case as being before the court will amount to a general appearance unless such action was taken solely for the purpose of objecting to jurisdiction. (Lord v. Hubert, 12 Ill.2d 83, 145 N.E.2d 77; Greer v. Ludwick, 100 Ill. App.2d 27, 241 N.E.2d 4.)" (Emphasis added.)

It follows then that where the only actions taken are taken solely for the purpose of objecting to in personam jurisdiction, such will constitute a special appearance and not a submission to the jurisdiction of the court. See Kamp v. Bartlett, 164 Ill. App. 338.

• 2 In the instant case, the only reference to the April 7 proceeding contained in the record is the order of the court entered on that date. Therefore the actual purpose of defendants in entering their appearance must be inferred by the language of the order. In the order the court first found that defendants had entered a special and limited appearance and then it granted defendants 30 days "to take some appropriate action." Such "action" can only be understood as that which is "appropriate" to the special and limited appearance; that is, for the purpose of objecting to the court's jurisdiction over the persons of the defendants. This view is supported by defendants' subsequent actions in filing a written special appearance and a motion to quash service objecting to the court's jurisdiction, and their request for additional time to file affidavits in support of their motion. Consequently, in orally moving for an extension of time, defendants could only have intended such time solely for the purpose of making their objections to the court's jurisdiction.

We find no reason why a motion for an extension of time for the purpose of raising objections to jurisdiction should operate as a waiver of those objections. Nor do we find that compliance with section 20 of the Civil Practice Act excludes the making of such a motion.

Accordingly, we find that defendants entered a special appearance on April 7, 1977, and we reverse the lower court's order of July 14, 1977, which found to the contrary, and remand for further proceedings consistent with this opinion.

Reversed and ...


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