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Community Bk. & T. Co. v. Pavlich

OPINION FILED JUNE 2, 1980.

COMMUNITY BANK & TRUST COMPANY OF EDGEWATER, PLAINTIFF-APPELLEE,

v.

FREDERICK PAVLICH ET AL., DEFENDANTS. — (JOSEPH PAOLELLA, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

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

On October 24, 1978, judgment by confession was entered on a note in favor of Community Bank & Trust Company of Edgewater and jointly and severally against Joseph Paolella (defendant), Frederick Pavlich, Ralph Applegate, Jr., and Gordon Foster for $26,305.89 plus costs and interest. Summons to confirm the judgment was issued on October 30, 1978. The summons directed to defendant was returned "not found" on November 19, 1978. Defendant has never been served with summons to confirm.

On November 20, 1978, an appearance was filed by attorney Barry Goodman on behalf of defendant Paolella and co-defendants Pavlich and Foster. Attorney Goodman entered the appearance without any contact with defendant and without his consent or knowledge. Goodman had never represented defendant in any matter, and they had never discussed this matter. Later, in an affidavit, Goodman averred he had filed the appearance inadvertently. Goodman never informed defendant that an appearance had been entered. After filing the appearance, attorney Goodman took no further action.

On January 25, 1979, defendant was served with a citation to discover assets, but this was quashed.

On February 27, 1979, the court entered an order confirming the judgment by confession against defendant and a co-defendant for whom attorney Goodman had filed an appearance. Although attorney Goodman was served with notice of plaintiff's motion to confirm, he failed to appear.

On February 28, 1979, a citation to discover assets was issued to defendant. The citation was served on March 5, 1979. Defendant claims that not until this time was he aware that suit had been filed against him and judgment had been confessed. Pursuant to the citation, defendant appeared in court on March 28, 1979. Defendant was without counsel and requested a continuance of the citation proceedings. The matter was continued several times until June 6. On that date, defendant appeared with a new attorney, Barry Erlich, who filed his appearance on defendant's behalf.

On June 14, 1979, attorney Erlich filed a motion to vacate the order confirming the judgment against defendant on the grounds that the order was entered without jurisdiction over defendant and without notice or an opportunity for a hearing. The motion alleged the summons to confirm the judgment was never served upon him. Also, as above set out, the purported appearance of attorney Goodman for defendant was unauthorized and therefore a nullity. The motion alleged, "Plaintiff has a valid defense to the note in that he believes that he did not sign the note." The motion was accompanied by the affidavits of defendant and attorney Goodman. The motion prayed that the order of February 27, 1979, confirming the judgment by confession against defendant be vacated and that defendant have leave "to file his verified answer and motion to open up judgment by confession." The trial court denied the defendant's motion to vacate and allowed the continuation of supplementary proceedings before Judge Cohen. Defendant appeals from the denial of the motion to vacate.

Defendant contends the order confirming the judgment by confession should be vacated for lack of jurisdiction because he was never served with summons and never authorized any appearance on his behalf. He urges the judgment was confirmed and citations to discover assets were issued without notice to him and without affording him a hearing in violation of his constitutional right to due process.

• 1 Generally, service of summons upon a defendant is essential to create jurisdiction of the court. In Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App.3d 581, 583, 366 N.E.2d 1015, this court held:

"It is axiomatic that one of the essentials of a valid judgment is that the court have jurisdiction to render it, and service of process on a defendant is a necessary and imperative element and prerequisite before the court can have jurisdiction to enter a judgment against him."

However, a defendant may waive the service of process and confer jurisdiction over his person upon the court. This may be done where a defendant fails to limit his appearance before the court to the narrow issue of service of process and instead at the same time seeks further relief from the court. In Goldberg v. Goldberg (1975), 27 Ill. App.3d 94, 97, 327 N.E.2d 299, this court quoted from Powers v. Powers (1964), 46 Ill. App.2d 57, 61, 196 N.E.2d 731:

"`The well established rule in Illinois is that a defendant who makes a special appearance challenging jurisdiction of his person must limit the appearance to the jurisdictional question. If he invokes the court's power to adjudicate any defense or defenses in bar he is deemed to have submitted to the jurisdiction of the court.'"

See also section 20(1) of the Civil Practice Act and notes by Jenner and Tone (Ill. Rev. Stat., ch. 110, par. 20, Historical & Practice Notes, at 202-04 (Smith-Hurd 1968), at 61 (Smith-Hurd Supp. 1979)).

In Hackler v. Cardinal Newman College (1979), 71 Ill. App.3d 665, 389 N.E.2d 960, this court considered a situation in which a defendant raised the question of in personam jurisdiction by filing a special limited appearance and then filing a motion to dismiss the suit under section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c)). The court cited Goldberg (71 Ill. App.3d 665, 668), and came to the conclusion that by the filing of the motion requesting relief other than the jurisdictional issue, the defendant had submitted himself to the in personam jurisdiction of the court. Other strong authorities announcing and approving the same principle are Gutow v. Cooper (1980), 82 Ill. App.3d 534, 402 N.E.2d 852; Rock Island Bank & Trust Co. v. ...


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