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Morris v. Martin-trigona

OPINION FILED OCTOBER 3, 1980.

EVAN J. MORRIS ET AL., PLAINTIFFS-APPELLEES,

v.

ANTHONY R. MARTIN-TRIGONA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. JAMES N. SHERRICK, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 10, 1980.

Defendant appeals the dismissal of his section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72). We must, on the third appeal of this case, reverse a portion of that order and remand this cause to the trial court. Because of the issues involved, it is necessary to set forth in some detail the torturous procedural history of this cause.

Plaintiffs and defendant entered into a contract for deed concerning certain property in Champaign County. Defendant failed to keep the property insured and missed several payments and was given notice by the plaintiffs that he was in default. Plaintiffs then filed suit for possession and for damages under the Forcible Entry and Detainer Act. The action was given an "S" designation by the clerk.

Defendant filed a petition for removal to the Federal District Court, a by now familiar course of conduct in each case wherein Martin-Trigona is a party. That petition was denied and the Federal Court remanded the cause to the State court. No response from the defendant having been filed and no appearance having been made, the trial court entered a default judgment in favor of plaintiffs.

Following the entry of the default judgment, the cause was set for a hearing on the question of damages before Judge Sherrick, who had not previously heard any part of this suit. Defendant appeared at that hearing and filed a motion for change of judge. It is noteworthy that the motion as prepared did not name Judge Sherrick until defendant wrote in his name during argument on the motion. That motion was denied, and defendant left the hearing, maintaining that the court did not have jurisdiction. Judgment for possession and damages of $5,085 for defendant's wrongful continuation of possession was then entered. A notice of appeal from this judgment was filed and was docketed as No. 14652. That appeal was dismissed for want of prosecution.

Plaintiffs thereafter filed a citation to discover assets. Defendant appeared at the hearing on the citation and attempted to file a section 72 petition. The trial court refused to hold an immediate hearing on the petition and defendant filed a notice of appeal. Defendant then refused to answer questions concerning his assets propounded by plaintiffs, claiming a fifth amendment right against self-incrimination. He was then held in contempt of court. The notice of appeal filed during the hearing was docketed as No. 15035 and was dismissed by this court for want of a final order.

Defendant then refiled his section 72 petition. Plaintiffs moved to strike the petition and that motion was allowed. This appeal is from that order and, while we reverse, we do not find it necessary to address each of defendant's claims raised in the petition.

• 1 The proceeding here may be divided into three portions: (1) the granting of a default judgment, (2) the hearing on damages which resulted in an order for possession and a judgment for money, and (3) the contempt order. Defendant raised several issues in his section 72 petition relating to the court's jurisdiction in all instances. Contrary to defendant's assertions, the court did have jurisdiction to award damages for rent (Ill. Rev. Stat. 1979, ch. 57, par. 5). The fact that this cause was given an "S" number (denoting a small claim) involves the internal procedures of the Champaign County Clerk's office and did not deprive the court of jurisdiction. Likewise, the failure of the trial court to award a defendant a stay, even if error, which it was not, was not jurisdictional and consequently cannot be attacked collaterally.

Defendant argues that the trial court had no jurisdiction to enter the default judgment because plaintiffs failed to send him notice of their intent to file suit 30 days before initiating this action. That notice is clearly required by section 3 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1975, ch. 57, par. 3). The record shows that on February 27, 1976, defendant was given a notice of default on the contract for deed. On November 23, 1976, plaintiffs sent defendant an "Election by Sellers to Declare Agreement at End" which included their demand for immediate possession. The complaint, to which these two notices were appended, was filed on November 24, 1976.

• 2 We note initially that this issue was not raised in defendant's section 72 petition and appears for the first time in his brief on appeal. We address the issue here only because it goes to the question of voidness which may be raised "at any time," and we conclude that the general rule includes proceedings on appeal.

• 3 The failure of plaintiffs to give the required notice is without a doubt a defect. (Given v. Lofton (1935), 359 Ill. 228, 194 N.E. 512.) Defendant argues that the hearing on the complaint resulting in the entry of default judgment was improperly held and that the trial court was without subject matter jurisdiction because no notice was given. (See Craft v. Calmeyer (1934), 274 Ill. App. 296.) In Craft, the court, in dicta, relied on the theory that the trial court in forcible entry and detainer was a court of limited jurisdiction to reach the conclusion that deviation from the statutory procedure deprived the court of subject matter jurisdiction. Since the adoption of the Judicial Article in 1964 and the subsequent inclusion of that article in the 1970 Constitution (Ill. Const. 1970, art. VI), that theory is no longer valid. We therefore find that the failure to give defendant the statutorily required 30-day notice, while error, did not deprive the trial court of jurisdiction. The judgment was therefore not void and could not be attacked for that reason by a section 72 petition even if included.

• 4 Upon one issue, however, we must reverse. It is clear that a defendant is entitled to one change of judge when the judge has not yet made a ruling of substance. (Anderson v. City of Wheaton (1975), 25 Ill. App.3d 100, 323 N.E.2d 129.) Even though default judgment had been entered — certainly a ruling of substance — Judge Sherrick, at whom the venue motion was directed, had not made any rulings. Nor had defendant made any prior motions for a change of judge in this cause. The defendant was entitled to a change of judge as a matter of right. By denying defendant's venue motion, Judge Sherrick divested himself of jurisdiction and the order granting plaintiffs' possession and damages must be reversed and remanded for a new hearing before a different judge. Little v. Newell (1973), 14 Ill. App.3d 564, 302 N.E.2d 739; Stark v. Roussey & Associates, Inc. (1972), 5 Ill. App.3d 665, 284 N.E.2d 924.

• 5 We specifically do not reverse that portion of the order denying section 72 relief concerning the contempt order. Even though we find error in the underlying judgment, the contempt citation is not thereby voided. The contempt arises independently of the validity of the judgment in aid of which the citation was issued. (United States v. United Mine Workers of America (1947), 330 U.S. 258, 91 L.Ed. 884, 67 S.Ct. 677.) It is clear that regardless of the validity of the underlying order, the trial court is vested with the power to protect its authority and command respect for its own orders by use of the contempt power. The only exception to this rule is where the court does ...


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