APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL and the Hon. RAYMOND K. BERG, Judges, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
This is an appeal pursuant to Supreme Court Rule 304(b)(3) (Ill. Rev. Stat. 1975, ch. 110A, par. 304(b)(3)) from the vacating of a decree of foreclosure and sale under the provisions of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). The issues presented on appeal are: (1) whether the court erred in finding the affidavit for service by publication defective on its face, thus depriving the court of jurisdiction over the defendants and rendering the decree of foreclosure and sale void; (2) whether the court erred in ordering the sale to third party purchasers vacated and set aside; and (3) whether the court erred in its denial of a motion for an evidentiary hearing on the factual issues raised by the pleadings.
On July 3, 1974, Mercantile All-In-One Loans, Inc. (hereinafter plaintiff) filed suit in the circuit court of Cook County to foreclose a second mortgage and sell certain property in Glenview, Illinois, naming Albert and Ann Menna (hereinafter defendants) as defendants. *fn1
Summons was issued on July 5, 1974, and was placed with the sheriff of Cook County for service on July 8, 1974.
On July 19, 1974, the summons was returned, stamped "not found," and noted as follows:
"Unable to contact after several attempts Will not answer the door 2 cars in drive 73 Buick Electra G54671 and 73 or 74 Pont G54670."
On July 31, 1974, an affidavit for service by publication was filed. This affidavit was executed by plaintiff's attorney and was notarized on July 8, 1974. The words "Unknown Owners" were printed in black ink and the affidavit was signed in black ink by plaintiff's attorney. All other writing on the affidavit was in blue ink and recited that upon diligent inquiry, the place of residence of defendants, Albert and Ann Menna, could not be ascertained. It listed their last known place of residence as 1912 Robin Crest Lane, Glenview, Illinois.
On August 14, 1974, a copy of the publication notice as it appeared in the Chicago Daily Law Bulletin on August 5, August 12, and August 19, 1974, was mailed by the clerk of the circuit court of Cook County to defendants, and the clerk's certificate of mailing this notice to defendants was filed with the court. This notice was never returned by the United States Post Office.
Upon failure of defendants to appear or plead, an order of default was entered on September 11, 1974. On the same date, the trial court entered a decree of foreclosure wherein it found the defendants were served by publication notice in a manner and form as required by law, that the court had jurisdiction of the subject matter and of the parties, and that the total amount due plaintiff was $4,914.12.
Pursuant to the decree, a sheriff's sale was held on October 15, 1974, at which Frank Skach and Paul B. Javaras (hereinafter respondents) purchased the subject property for $5,112. Notice of this sale had been published in the Chicago Daily Law Bulletin. The sheriff's report of sale and distribution was approved by the court on October 16, 1974.
No redemption having been made within the time prescribed in the foreclosure decree, a sheriff's deed to the property was issued to respondents. Subsequently, on October 14, 1975, the registrar of titles of Cook County issued an owner's duplicate certificate of title to respondents.
On November 17, 1975, defendants filed a petition to vacate the decree of foreclosure and sale pursuant to section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 72.) Both plaintiff and respondents filed motions to dismiss.
On March 24, 1976, defendants filed an amended section 72 petition which alleged that they had no knowledge of the foreclosure proceedings until October 27, 1975, when they received a notice of respondents' petition for a writ of assistance; that plaintiff attempted personal service on defendants only once on July 19, 1974, which showed a lack of due diligence; that at the time the decree was entered, defendant Albert Menna was under a mental disability which was unknown to the court but was known or should have been known to plaintiff since some of the payments on the note came from a disability insurance policy; that plaintiff tried to hide the foreclosure proceedings from defendants by failing to join or inform First Federal Savings and Loan Association, the holder of the first mortgage, of the proceedings, and by failing to inform defendants of the proceeding when plaintiff talked to defendant Ann Menna on the telephone in May 1974; that it was unknown to the court that defendants' equity in the subject property was in excess of $50,000, and thus the sale to respondents for $5,112 was grossly inadequate; and that defendants had tendered respondents the amount they had paid plus interest. *fn2
On April 14, 1976, respondents filed a motion to dismiss defendants' amended petition relying on section 72(5) which protects the rights of third-party purchasers, not parties to the original action, who purchased property in reliance upon a court decree unless a lack of jurisdiction ...