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11/03/88 In Re Estate of John E. Moore

November 3, 1988

IN RE ESTATE OF JOHN E. MOORE, DECEASED (EDWARD J. MOORE ET


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

al., Petitioners-Appellants, v.

Vivian Szepcsik, Respondent-Appellee)

530 N.E.2d 635, 175 Ill. App. 3d 926, 125 Ill. Dec. 477 1988.IL.1603

Appeal from the Circuit Court of McLean County; the Hon. Keith E. Campbell, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

This case concerns the relief available to an interested party after the approval of a final report of a representative of a decedent's estate when the interested party (1) has received proper notice of the hearing on that report; (2) did not make timely objection to the report prior to hearing; but (3) seeks to attack the approval of the report within 30 days from the entry of the order approving the report.

Section 24 -- 2 of the Probate Act of 1975 (Act) states in pertinent part as follows:

"Notice of the hearing on any account of a representative of a decedent's estate shall be given as the court directs to unpaid creditors and to every person entitled to a share of the estate who has not received that share in full. If the account is approved by the court upon the hearing, in the absence of fraud, accident or mistake, the account as approved is binding upon all persons to whom the notice was given." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 24-2.)

This language might be interpreted to mean the order of approval could not be attacked by the previously described interested party at any time on grounds other than "fraud, accident, or mistake."

Conversely, section 1-6 of the Act states the Civil Practice Law "shall apply to all proceedings under this Act, except as otherwise provided in this Act." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 1-6.) Section 2-1203(a) of the Code of Civil Procedure (Code) permits, in non-jury cases, the filing, within 30 days after judgment, of a motion for a rehearing, retrial, modification or vacation of the judgment "or for other relief." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1203(a).) In addition, section 2-1301(e) of the Code states:

"The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1301(e).)

As we later explain, the requirement of section 24-2 of the Act, that "fraud, accident, or mistake" must be shown in order to obtain relief from a judgment, is quite similar to the showing required by section 2-1401 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), which allows relief from a judgment when the request is made more than 30 days after entry of the judgment. Thus, consideration of section 24-2 of the Act together with section 1-6 of the Act and sections 2-1203(a), 2-1301(e), and ...


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