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07/23/87 Meldoc Properties, v. Helen Prezell

July 23, 1987





Interest to Prezell of Woodridge, Inc.,

formerly d/b/a Barone's of Woodridge, Defendants)

511 N.E.2d 861, 158 Ill. App. 3d 212, 110 Ill. Dec. 684 1987.IL.1048

Appeal from the Circuit Court of Du Page County; the Hon. Fredrick Henzi, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and NASH, J., concur.


Defendant, Helen Prezell, appeals from a judgment in the amount of $20,000 entered against her and her ex-husband, Dave Prezell, individually and d/b/a Italian Connection, and as successor in interest to Prezell of Woodridge, Inc., a dissolved Illinois corporation, formerly d/b/a Barone's of Woodridge. On appeal, Helen Prezell contends that the trial court lacked jurisdiction over her.

Preliminarily, we note that plaintiff has not filed a brief. Pursuant to the principles enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, we will address the merits of the appeal. On March 12, 1986, plaintiff, Meldoc Properties, filed a complaint in forcible entry and detainer against defendants. As damages, plaintiff sought the sum of $17,994.39. Defendants, Helen Prezell and Dave Prezell, had personally guaranteed the tenant's performance in the event of default on the part of Prezell of Woodridge, Inc., d/b/a Barone's of Woodridge. Service was made on defendant Dave Prezell. Service on defendant Helen Prezell was apparently attempted, without success, on May 14, 1986. However, on April 3, 1986, attorney Jerry R. Lipschultz entered an appearance on behalf of all the defendants. The attorney filed an answer on defendants' behalf.

On August 22, 1986, after receiving a letter from attorney Lipschultz dated July 29, 1986, defendant Helen Prezell, through retained counsel, entered a special and limited appearance and a motion to strike the appearance of Lipschultz as her attorney. In her motion, defendant alleged that she had not been served with process, and she alleged that she had no knowledge of the pending lawsuit until she received a letter from attorney Lipschultz. She further alleged that Lipschultz had appeared on her behalf without her knowledge or consent and that she did not so consent. Helen Prezell represented that the defendants' interests were adverse and hostile such that attorney Lipschultz could not fairly represent her, and that at the time of the purported service on Dave Prezell, the parties were no longer married and were living apart. Helen Prezell requested that the appearance on her behalf by attorney Lipschultz be stricken, that any orders already entered against her be vacated, and that she be dismissed as a party defendant for lack of in personam jurisdiction. In a separate affidavit, Helen Prezell swore under oath that the allegations in the motion were true. Attached to her motion was a letter from attorney Lipschultz in which he advised Helen Prezell that: he had been retained by Helen's ex-husband, Dave Prezell; Dave Prezell had requested him to appear in both his and Helen's names; and attorney Lipschultz had filed an appearance in both their names. He then advised Helen that she faced possible exposure for any judgment, and he suggested that she might wish to retain a lawyer or contact him to represent her.

On August 22, 1986, after a short hearing, the trial court denied the motion of defendant Helen Prezell, indicating that possibly Helen would have some type of claim against attorney Lipschultz. On September 12, 1986, an "agreed" order was entered against defendants in the amount of $20,000, with defendants agreeing to complete repairs to the premises at their own expense. On September 19, 1986, Helen Prezell filed a notice of interlocutory appeal from the order denying her motion to strike. Then on October 7, 1986, she filed a motion to vacate the judgment. After hearing argument, the trial court denied the motion to vacate on October 24, 1986. Thereafter, on October 31, 1986, defendant Helen Prezell filed a notice of appeal.

We must first address the procedural posture of this case to determine what part, if any, of the proceedings below are properly before us on this appeal. On September 19, 1986, within 30 days of the denial of defendant's motion to strike and within 30 days of the judgment order, a notice of appeal entitled "Notice of Interlocutory Appeal," purporting to be an appeal from the denial of the motion to strike, was filed by defendant Helen Prezell. If this was a proper notice of appeal, the trial court's later order denying the defendant's motion to vacate was without effect because filing of a proper notice of appeal divests the trial court of jurisdiction. (Weilmuenster v. H. H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 105.) The defendant's appeal was from a non-final order not encompassed by Supreme Court Rules 306, 307, or 308 (107 Ill. 2d Rules 306, 307, 308), the rules which allow interlocutory appeals under certain circumstances. Therefore, the appeal was improper and did not confer jurisdiction on this court. (O'Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 133; Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 873-74.) Under these circumstances, the trial court had jurisdiction to hear and rule upon defendant's motion to vacate the judgment entered against defendant. The defendant has filed a timely and proper notice of appeal from that order.

Proper service of summons is a necessary element to obtaining jurisdiction over a party, and, thus, any judgment rendered under circumstances where this jurisdictional standard has not been fully followed is void ab initio for lack of jurisdiction over the defendant. (In re Adoption of Miller (1982), 106 Ill. App. 3d 1025, 1029-30.) Jurisdiction cannot be obtained by notice, but can be acquired where a defendant or respondent voluntarily appears or is permitted to intervene. (Augsburg v. Frank's Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333.) Personal jurisdiction is conferred by service of summons or by a general appearance and is derived from the actions of the person sought to be bound. Without jurisdiction, the court is without power to impose a personal obligation such as the payment of money. In re Marriage of Hostetler (1984), 124 Ill. App. 3d 31, 34.

In this case, retained counsel for defendant Helen Prezell filed a special appearance for the purpose of objecting to the court's jurisdiction over the defendant's person. Under section 2-301(b) of the Civil Practice Act (Ill. Rev. Stat. 1985, ch. 110, par. 2-301(b)), if the reasons for objections to the court's jurisdiction are not apparent from the papers on file in the case, the special appearance must be supported by affidavit setting forth the reasons. The court may then consider all matters apparent from the papers on file, affidavits submitted by any party, and any evidence which is adduced upon disputed issues of fact. After the trial court denied the motion of defendant Helen Prezell to strike Lipschultz' appearance on her behalf and to dismiss her as a party defendant to the case, Helen Prezell's retained counsel took no further action with regard to the proceedings until he filed a motion to vacate the judgment order on ...

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