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First Fed. Sav. & Loan Ass'n v. Brown

OPINION FILED JULY 16, 1979.

FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, PLAINTIFF-APPELLEE,

v.

RICHARD BROWN, JR., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, First Federal Savings and Loan Association of Chicago, brought this action against defendants, Richard Brown, Jr. and Audrey F. Brown, to foreclose on its mortgage. Defendants failed to appear or plead and a default judgment was entered for plaintiff. The mortgaged property was sold at public sale to plaintiff and plaintiff thereafter obtained an in rem order for the deficiency. Defendant, Richard Brown, Jr., subsequently filed a special and limited appearance and later an amended petition, in which he stated that the trial court never acquired jurisdiction over him because service of process had been defective. Defendant in his amended petition asked that service be quashed and the foreclosure and deficiency judgment vacated. The trial court denied defendant's amended petition and defendant appeals.

Plaintiff filed its action to foreclose on January 6, 1976. On the sheriff's return of the summons, the deputy listed defendants' address as 15923 S. Ashland, Harvey, and stated that on January 7, 1976, he served defendants at their usual place of abode by delivering a copy of the writ to a member of defendants' family of the age of 13 years or older, named Vivian Pittman. Shortly thereafter plaintiff learned that defendants had been divorced on December 26, 1975. It then, on January 27, 1976, filed an amendment to the complaint alleging that it did not know whether either defendant had remarried and making any spouse of either a party defendant as "unknown owner."

On March 11, 1976, plaintiff had service by publication issue against defendants. In the affidavit for service by publication, plaintiff's attorney stated that defendants "Richard Brown, Jr. and Audrey F. Brown on due inquiry cannot be found so that due process cannot be served on them," and that "[d]efendant's place of residence upon diligent inquiry cannot be ascertained and their last known place of address was 15923 South Ashland Avenue, Harvey, Illinois."

On April 29, 1976, the trial court entered a default order against defendants and a decree of foreclosure and for sale of the mortgaged property was entered. A public sale, at which the property was purchased by plaintiff, was held on June 1, 1976. On June 8, 1976, plaintiff also obtained an in rem judgment for the deficiency "against the rents, issues and profits" of the property.

On August 26, 1977, the attorney for defendant Richard Brown, Jr., mailed to plaintiff a notice to produce the mortgage application filed by Richard Brown, Jr.

On November 18, 1977, defendant Richard Brown, Jr., filed a special and limited appearance accompanied by a verified petition, his affidavit, the notice to produce and the affidavit of his attorney in his 1974 divorce action. The petition and affidavit, read together, stated that in foreclosing defendant Richard Brown, Jr.'s, interest in the property the court gained jurisdiction by means of publication pursuant to an affidavit which stated that "Richard Brown on due inquiry cannot be found so that due process cannot be served on him." They also stated that plaintiff could have found defendant by due inquiry through his employer, because not only had he listed International Harvester as his employer on his mortgage application with plaintiff, but also he had been employed by International Harvester since 1966, was working there on March 9, 1976, was still employed there, and in 1976 "several persons other than plaintiff served summons upon me through my employment." Defendant also stated that although plaintiff could have found him by making due inquiry of his attorney of record in his 1974 divorce action, of which plaintiff was aware at the time of service by publication, plaintiff failed to inquire of defendant's divorce counsel defendant's whereabouts. The affidavit of defendant's attorney in the divorce action stated that "neither plaintiff nor anyone acting on his behalf has ever inquired as to the whereabouts of Richard Brown, Jr."

Plaintiff filed its answer to defendant's petition on May 3, 1978, stating that judgment was entered on April 29, 1976, and that the court gained jurisdiction over defendant by the summons served on January 7, 1976. Plaintiff further stated that defendant had known about the pendency of the case at least since August 26, 1977, because that was the date defendant's attorney had sent plaintiff a notice to produce the mortgage application filed by defendant; thus, defendant's petition was "not timely instituted." Plaintiff also asserted that defendant's petition "requested no relief."

On May 26, 1978, defendant filed a verified amended petition and a second affidavit. In these documents, read together, defendant reiterated the statements he made in his original petition and affidavit, and also stated that (1) he had not been personally served with summons, (2) on January 7, 1976, no person by the name of Vivian Pittman lived with him at his usual place of abode, (3) on January 7, 1976, he did not live at 15923 S. Ashland, Harvey, Illinois. Defendant asked that the abode service and the service by publication be quashed and the foreclosure and deficiency judgment "expunged." On the same date, the trial court ordered plaintiff's answer to the original petition stand as its answer to the amended petition, denied defendant's amended petition and entered an order stating that "defendant's amended petition is hereby denied for the reason that defendant's original petition which was filed Nov. 18, 1977, was not filed by leave court [sic] and that therefore defendant did not file a valid petition within 2 years as required by Sect. 72 of Civil Practice Act."

Defendant, on appeal, asks that we reverse the trial court's order denying his amended petition requesting that the abode service and service by publication be quashed and that the foreclosure and deficiency judgment be vacated, or that the order denying his amended petition be vacated and the cause remanded for a hearing on his amended petition. We vacate the order denying the amended petition and remand the cause for a hearing on that petition.

Plaintiff contends that motions under section 72 of the Civil Practice Act be made with due diligence (Ill. Rev. Stat. 1977, ch. 110, par. 72) and that defendant did not exercise due diligence in filing his petition and amended petition. Plaintiff states that defendant knew about the pendency of the foreclosure suit by at least August 26, 1977, the date of the mailing of defendant's notice to produce defendant's mortgage application.

Defendant contends that a petition attacking a judgment for lack of personal jurisdiction due to defective service is not restricted by the requirements of section 72 that a motion be timely presented, i.e., that it be presented with "due diligence" and within two years of the date of judgment. We agree with defendant. Initially, we point out that neither defendant's petition nor amended petition was designated as being filed under section 72. In essence, defendant was seeking a vacation of the default judgment for want of jurisdiction.

• 1, 2 It is elementary when a defendant has not been served with process as required by law and has not entered an appearance, the court has no jurisdiction over the defendant and a default judgment entered against him is void. A petition attacking a judgment as void may be brought at any time, either in a direct or a collateral proceeding (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill.2d 108, 357 N.E.2d 1154), and is not considered as being brought under section 72. (G. Brock Stewart, Inc. v. Valenti (1976), 43 Ill. App.3d 673, 674, 357 N.E.2d 180.) It need not meet the requirement of section 72 for timely presentation, even if the party filing the petition deems it to be a petition under that section. (Rickard v. Pozdal (1975), 31 Ill. App.3d 542, 334 N.E.2d 288.) Plaintiff's argument concerning section 72 is inapplicable. The issue is whether either the abode service or the service by publication was valid.

• 3 With respect to the abode service, the return of service states that defendant was served at his usual place of abode by delivering a copy on January 7, 1976, to a member of defendant's family named Vivian Pittman at 15923 South Ashland, Harvey, Illinois. Defendant's affidavit accompanying his amended petition states that (1) he had not been personally served with summons, (2) on January 7, 1976, no person by the name of Vivian Pittman lived with him at his usual place of abode, and (3) on January 7, 1976, he did not live at 15923 S. Ashland, Harvey, Illinois. Plaintiff filed no counter-affidavit. Defendant contends that the abode service should have been quashed. We agree. The rule is that "[w]hen * * * the deputy's return recites that he served an individual defendant, not by serving him in person, but by serving a member of his family at his usual place of abode * * * no * * * presumption [of validity] arises and, where such a return is challenged by affidavit and there are no counteraffidavits, the ...


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