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People Ex Rel. Mcgraw v. Mogilles

OPINION FILED AUGUST 30, 1985.

THE PEOPLE EX REL. SADIE MCGRAW, PLAINTIFF-APPELLANT,

v.

HUEY MOGILLES, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County; the Hon. Jane Drew Waller, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, People of the State of Illinois ex rel. Sadie McGraw, appeals from an order of the circuit court which granted a motion by defendant, Huey Mogilles, for relief from a judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401) (formerly section 72 of the Civil Practice Act).

This is a paternity action brought on behalf of Sadie McGraw against defendant in March 1982. Defendant subsequently acknowledged he was the father of the infant child and on September 9, 1983, was ordered by the court to pay $35 per week as child support, reimburse plaintiff $340 for hospital bills and acquire military medical insurance for the child.

On October 10, 1983, the plaintiff filed a motion to reconsider and modify the order for child support in which it was alleged certain expenses submitted by defendant and taken into account in fixing child support were incorrect and should not have been so considered. Plaintiff requested the support be increased from the $35 ordered to $70 each week. The record discloses that notice of this motion and its hearing date of October 28, 1983, was mailed to defendant at Fort Sheridan, Illinois, and to his then attorney, Robert Heilgeist, at Lake Villa, Illinois. We have not been provided with a report of the proceedings held October 28; however, an order was entered by the trial court on that date raising the weekly child support to $70 per week. The order also noted that defendant failed to appear for the hearing.

On May 4, 1984, defendant's present attorneys entered their appearance on his behalf and filed a motion to vacate the order entered October 28 which had increased child support. The motion alleged that the order was entered more than 30 days after the September 9 final order setting child support, that no new evidence was presented of a change in circumstances and it was void as the trial court lacked jurisdiction. After a hearing held May 9, the motion to vacate was denied.

Defendant thereafter on July 6, 1984, filed a motion for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure which was executed by his attorney and which alleged that defendant's original counsel had failed to inform him his presence was necessary at the hearing in which child support was increased, and that the attorney had also failed to appear; that the attorney advised defendant the matter had been taken care of and it was not until a lien was filed upon defendant's earnings in April 1984 that he became aware the child support was increased; and, that defendant had made each of the payments originally ordered on September 9, 1983. The motion also alleged "that the Respondent has a good and sufficient defense to the Motion to Reconsider and Modify Order of Child Support," but did not specify the nature of that defense.

Defendant's motion was supported by the affidavit of Willa M. Mogilles, his wife, who stated he was in the military stationed in Korea. It alleged that on receiving notice in October 1983 that plaintiff was filing a motion to reconsider and modify the order for child support, defendant's attorney was contacted and he advised he would take care of it and that defendant's presence was not required; that after the date of the hearing the attorney advised defendant it was taken care of and they needn't worry about it; that defendant made the payments originally ordered and didn't learn of the modified order of October 28, 1983, until a lien was placed against his earnings in April 1984. The affidavit also stated, "that the Respondent possesses a good defense and answer to said Motion to Reconsider and Modify Order of Child Support."

The trial court after a hearing entered orders granting defendant's motion for relief from judgment under section 2-1401 of the Code of Civil Procedure by vacating it, reducing child support to $35 per week and directing the Department of the Army to cease withholding funds from defendant's salary for that purpose. Plaintiff has appealed, and this court has stayed the judgment of the trial court.

Plaintiff initially contends that defendant's first motion to vacate the support order of October 28, 1983, which the trial court denied, must also be treated as a petition for relief from judgment under section 2-1401 as it was filed on May 4, 1984, more than 30 days after entry of the judgment sought to be vacated. Plaintiff argues that one cannot file successive motions to vacate a judgment under section 2-1401 and defendant was required to, but did not, appeal from the denial of his first motion and the trial court thus lacked jurisdiction to consider defendant's second motion from which he now appeals, citing, e.g., Sullivan v. Bach (1981), 100 Ill. App.3d 1135, 1140, 427 N.E.2d 645 and Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App.3d 688, 690, 306 N.E.2d 510.

Defendant responds that his first motion was to vacate the October 28, 1983, judgment on the grounds it was void as the trial court had lost jurisdiction 30 days after the September 9 judgment. He argues the motion may not be considered as brought under section 2-1401, citing Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App.3d 176, 372 N.E.2d 965, and section 2-1401(f) of the Code of Civil Procedure, which provides:

"(f) Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief." Ill. Rev. Stat. 1983, ch. 110, par. 2-1401(f).

• 1 It is well established that a void judgment can be attacked at any time in either a direct or collateral proceeding. (See, e.g., Dahl v. Grenier (1984), 126 Ill. App.3d 891, 893, 467 N.E.2d 992; In re Marriage of Gryka (1980), 90 Ill. App.3d 443, 446, 413 N.E.2d 153, appeal denied (1981), 83 Ill.2d 570; Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App.3d 581, 585, 366 N.E.2d 1015.) Every act of a court beyond its jurisdiction is void (Stone & Adler, Inc. v. Cooper (1974), 20 Ill. App.3d 576, 579, 315 N.E.2d 56), and final orders entered without jurisdiction of the person or the subject matter are void. (Sullivan v. Bach (1981), 100 Ill. App.3d 1135, 1140, 427 N.E.2d 645.) A trial court loses jurisdiction over a matter once 30 days have passed following the entry of a final and appealable order if, during that time, neither party takes any legally proper action which delays the 30-day period. Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App.3d 161, 166, 415 N.E.2d 1060; see section 2-1203 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203).

• 2 The first motion defendant filed following entry of the October 28, 1983, order raising child support to $70 was his May 4, 1984, motion to vacate that order. It alleged that the court lacked jurisdiction to enter the order which was void because it had been entered more than 30 days after entry of the original support order on September 9, 1983. Defendant's motion was not designated as under the provisions of section 2-1401; it alleged only that the order increasing child support was entered on October 28, being more than 30 days after the final and appealable order of September 9. We note, parenthetically, that the trial court correctly denied defendant's first motion to vacate; it is clear, as defendant now concedes, the court had jurisdiction to address plaintiff's motion to reconsider the September 9 judgment as it was timely filed on October 10. Although that was the 31st day after the original judgment was entered, the 30th day was a Sunday. See Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App.3d 161, 415 N.E.2d 1060; Ill. Rev. Stat. 1983, ch. 110, par. 2-1203.

It is true, as urged by plaintiff, that a party may not avoid or extend the time for appeal of a final order by filing successive and repetitious motions to vacate the judgment. The rule applies both to a motion to vacate a final judgment brought within 30 days of its entry pursuant to section 2-1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203; see Deckard v. Joiner (1970), 44 Ill.2d 412, 418, 255 N.E.2d 900), and to a motion brought after 30 days of entry of the judgment pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401). (Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App.3d 176, 181, 372 N.E.2d 965; In re Marriage of Kirk (1980), 85 Ill. App.3d 805, 809, 407 N.E.2d 562; Peoples Gas Light & Coke Co. v. Rubin (1980), 89 Ill. App.3d 244, 247, 411 N.E.2d 886; Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App.3d 688, 690, 306 ...


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