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08/24/88 Paul B. Javaras Et Al., v. John J. Caulfield Et Al.

August 24, 1988

PAUL B. JAVARAS ET AL., PLAINTIFFS-APPELLEES

v.

JOHN J. CAULFIELD ET AL., DEFENDANTS (SUSIE CHRISTOFF ET AL., DEFENDANTS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

528 N.E.2d 330, 174 Ill. App. 3d 314, 123 Ill. Dec. 785 1988.IL.1298

Appeal from the Circuit Court of Cook County; the Hon. George Marovich, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

On July 8, 1986, plaintiffs, Paul B. Javaras and Kalman Goldberg, purchased the 60% undivided interest of James John in a Chicago apartment building at a sheriff's sale of that interest. On April 7, 1987, plaintiffs brought the instant action for partition in the circuit court of Cook County after they received a sheriff's deed upon expiration of the six-month statutory redemption period. Plaintiffs joined, as defendants, James John, Susie Christoff, Jeanette John, Margaret John, Junia Shlaustas, Raymond Shlaustas, John J. Caulfield and unknown owners. Plaintiffs alleged that defendants Susie Christoff, Jeanette John, Margaret John and Junia Shlaustas each owned an undivided 10% interest in the subject property. They further alleged that defendants James John, Raymond Shlaustas and John J. Caulfield either claimed a lien on, or were in physical possession of, the property.

On September 29, 1987, the trial court entered a default judgment against defendants James John and unknown owners. On that date, the court also granted plaintiffs' motion to strike the affirmative defenses of defendants Susie Christoff, Jeanette John, Margaret John, Junia Shlaustas and Raymond Shlaustas. On October 20, 1987, defendant John J. Caulfield stipulated and consented to the adjudication of the parties' rights and interests and a sale of the apartment building. On December 4, 1987, the trial court granted plaintiffs' motion for summary judgment against defendants Susie Christoff, Jeanette John, margaret John, Junia Shlaustas and Raymond Shlaustas. Those defendants (hereinafter appellants) now appeal the trial court orders striking their affirmative defenses to plaintiffs' partition action and granting plaintiffs' motion for summary judgment.

Appellants' affirmative defenses to the partition action alleged, inter alia, that the sheriff's sale of James John's interest in the subject realty was void due to the lack of actual notice thereof to them. Section 12-115 of the Code of Civil Procedure, governing the notice required of the public sale of real estate by virtue of judgments, merely requires newspaper publication notice once a week for three weeks and the posting of notice in three public places. Ill. Rev. Stat. 1985, ch. 110, par. 12-115.

Appellants concede that in Illinois collateral attacks upon judicial sales are limited to those that are void because of a lack of jurisdiction in the court ordering the sale or fraud practiced in effecting the sale. (City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 479 N.E.2d 1040.) However, they contend that they had a Federal procedural due process right to actual notice of the sheriff's sale of James John's 60% undivided interest in the subject property. (U.S. Const., amends V, XIV.) Appellants Susie Christoff, Jeanette John, Margaret John and Junia Shlaustas claim that right by virtue of their being tenants in common in that property with James John. Appellant Raymond Shlaustas claims the right by virtue of a lien arising from the payment of real estate taxes on the property.

Appellants also concede that their interests in the subject property were not sold at the sheriff's sale. However, they assert that those interests were adversely affected by the sale. They reason that plaintiffs purchased the right to force a partition of the subject property at the sheriff's sale and that a partition will result in the loss of their interests in the property.

As appellants concede that their interests in the apartment building were not sold at the sheriff's sale and as we conclude that they were not otherwise directly affected by that sale, the Federal constitutional law cases and principles upon which they rely are of no avail to them.

Appellants chiefly rely on the landmark decision of Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652. Mullane involved the notice due the beneficiaries of a common trust fund, established under the New York Banking Law, of the trustee's petition for a judicial settlement of accounts. Regarding the deprivation of property necessary to invoke the due process right to actual notice and an opportunity to be heard, the court stated:

"In two ways this proceeding does or may deprive beneficiaries of property. It may cut off their rights to have the trustee answer for negligent or illegal impairments of their interests. Also, their interests are presumably subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest. Certainly the proceeding is one in which they may be deprived of property rights and hence notice and hearing must measure up to the standards of due process." Mullane, 339 U.S. at 313, 94 L. Ed. at 873, 70 S. Ct. at 657.

Clearly, unlike the situation in Mullane, appellants were subjected to neither the potential nor actual deprivation of any property interests in the sheriff's sale proceeding to satisfy the judgment debt of their cotenant, James John. The fact that, after purchasing James John's interest in the subject property, plaintiffs chose to seek a partition of the property does not ...


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