Appeal from the Circuit Court of Champaign County; the Hon.
John G. Townsend, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This proceeding represents the fourth appeal in the ongoing litigation over the marriage dissolution and property distribution of the defendants. It concerns a mortgage given by defendant Bentley Pettit to his attorney, Richard B. Opsahl, a member of the plaintiff law firm, in payment of his fees for representing Pettit in the dissolution matter.
The history of the legal marching and countermarching is detailed in prior opinions (Pettit v. Pettit (1978), 60 Ill. App.3d 375, 376 N.E.2d 782; Pettit v. Pettit (1980), 85 Ill. App.3d 280, 406 N.E.2d 899) and need not be reiterated here. In addition to the two foregoing cases, a third appeal was filed in 1981, following the remand in the 1980 appeal, but it was dismissed for failure to file a docketing statement.
The chronology of the 1978 appeal is material to an understanding of the issues raised in the instant case. The 1978 opinion was filed May 26, 1978, and this court's mandate reversing and remanding was issued June 28, 1978. Among other reasons for such reversal and remand was the failure of Luella Pettit to plead special equities in the jointly held real estate of the parties. However, in the course of the opinion this court said, "Our decision on this question in no way restricts the trial court's power on remand to give further consideration to the question of whether it should permit amendment of the pleadings." (60 Ill. App.3d 375, 380, 376 N.E.2d 782, 786.) Such amendment was apparently accomplished since in the 1980 appeal this court held that special equities had been established, but again reversed and remanded for clarification of the maintenance award.
Between the date of the filing of the 1978 opinion and the issuance of the mandate, specifically on June 6, 1978, Bentley Pettit executed his promissory note in favor of the plaintiff in the instant case and secured it with a mortgage on certain real estate which the trial court had awarded to Luella Pettit in that proceeding.
In March 1981 plaintiff filed a suit for declaratory judgment in the circuit court of Champaign County (the dissolution proceedings were conducted in Ford County) and sought a declaration that the mortgage was a superior lien to any claim by either of the Pettits. The circuit court so held and in its judgment order specifically adjudicated that the mortgage was prior and superior to any interest of Luella Pettit, who appeals that judgment. Bentley Pettit was served with summons but took no part in the litigation.
The resolution of the case depends upon the procedural steps taken in the trial court and upon the application of the doctrine of lis pendens.
Plaintiff's complaint was verified; the first responsive pleading was a motion to dismiss which was later withdrawn and an answer filed on behalf of Luella Pettit. The answer was unverified and set up lis pendens as an affirmative defense; it also contained within the body of the document an allegation of equitable ownership in Luella Pettit. Plaintiff's response to the answer consisted of two motions. One purported to sound under section 48 of the Civil Practice Act and the other under section 45 of the Act. (Ill. Rev. Stat. 1979, ch. 110, pars. 48, 45, now Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, pars. 2-619, 2-615.) The trial court allowed both motions.
The section 48 motion was less than precise in that it did not specify which of the various subsections of paragraph (1) was being utilized. It alleged in substance that an owner of property is not prohibited from conveying it by virtue of a pending action provided no fraud is present. It was supported by an affidavit from Bentley Pettit's attorney that the note was given for fees and costs incurred in the dissolution litigation and that Bentley had no interest in the proceeds of the note and mortgage. We can only assume that the motion sounded under subsection (i) of paragraph (1) of section 48, which provides for "other affirmative matter avoiding the legal effect of or defeating the claim or demand." Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(i).
• 1 It is our opinion that the section 48 motion was improper and further that the trial court was in error in allowing it. In essence it questions the legal sufficiency of the defense of lis pendens; the fact that the note and mortgage were given for value received was not controverted; and the lis pendens allegation appears on the face of the answer. In such a case, section 45 is the proper motion. In the Historical and Practice Notes to section 48 it is stated:
"Although defects that appear on the face of the pleading attacked may, according to the letter of the section, be reached by motion under this section, [citation], the section is not actually designed for use for that purpose, except where the defect from the face of the pleading is coupled in the motion with a ground of dismissal based on matter that does not appear of record. In other words, if the only ground of a motion is a defect that appears on the face of the pleading attacked the appropriate method of reaching that defect is by motion under section 45." Ill. Ann. Stat., ch. 110, par. 48, Historical and Practice Notes, at 354 (Smith-Hurd 1968).
In addition to the impropriety of the use of section 48, the trial court's ruling on the legal question asserted was in error, and it appears that this error carried through all of the subsequent proceedings. The error was a misapprehension of the law concerning lis pendens, as will be elaborated later.
The section 45 motion raised essentially the same ground as the section 48 motion, but added to it a failure to verify the answer as required by section 35 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 35, now Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 2-605.) The court's ruling, made by docket entry, states: "Plaintiff's section 48 motion allowed with respect to Defendant's answer. The same is stricken. Defendant granted leave to file amended answer within fourteen days of this date." No fuller explanation of the ruling is contained in the record. It therefore follows that the trial court must have considered the matter of lis pendens to have been finally adjudicated under the section 48 motion; under those circumstances leave to plead over could have arisen only from the section 45 motion on the sole basis of failure to verify. This is borne out by the subsequent proceedings.
In due course defendant filed an amended answer, verified, and without the affirmative matter contained in the original answer. The amended answer did contain within its body the same allegation as was in the original answer, i.e., equitable ownership in Luella Pettit. Plaintiff moved to strike this portion of the amended answer on the basis that the court had ...