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04/07/89 Jo Jan Corporation, v. Robert Brent

April 7, 1989

JO JAN CORPORATION, PLAINTIFF-APPELLEE

v.

ROBERT BRENT, INDIV. AND D/B/A BOB BRENT'S FOOD AND LIQUOR, ET AL., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

537 N.E.2d 956, 182 Ill. App. 3d 70, 130 Ill. Dec. 627 1989.IL.487

Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. MURRAY, P.J., and LORENZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

This action was brought against the defendants, Robert Brent et al. (Brent), by the plaintiff, JoJan Corporation (JoJan), to foreclose two mortgages secured by promissory notes and to foreclose a mechanic's lien. Brent filed a special and limited appearance contesting the court's jurisdiction over his person on the ground that he had not been properly served with summons. JoJan contended that service of process upon Brent was properly effectuated by publication. After an evidentiary hearing, the trial court denied Brent's special and limited appearance. Brent then filed a motion to reconsider the denial of his special and limited appearance which was also denied. Ultimately, judgment was entered in favor of plaintiff and against Brent. Brent filed a motion to expunge the void judgment, which was denied. Brent now appeals. The facts are as follows.

Robert Brent owned a food and liquor business located at 501-07 E. 47th Street, Chicago, Illinois. On November 15, 1981, Brent, in need of a loan for the business, was introduced to Howard Weitzman. Brent was told that Weitzman would possibly loan him the money he needed, and Weitzman took a loan application from Brent for that purpose. Weitzman then entered into a joint venture with the plaintiff, JoJan Corporation, to buy all the liens against Brent's 47th Street property.

On April 18, 1984, JoJan filed a complaint to foreclose. In its complaint, JoJan sought to foreclose two mortgages and a mechanic's lien and also for a money judgment for a breach of the contract on which the mechanic's lien was predicated. On that same day, summonses were lodged with the sheriff. On April 19, 1984, an affidavit for service by publication on Brent was filed with the Cook County clerk's office. The affidavit for service by publication named Brent as one of the defendants. The affidavit stated that Brent's place of residence was unknown. The affidavit was purported to have been signed by the affiant, Bernard Allen Fried. However, the evidence at the trial hearing established that the affidavit was not signed by Bernard Fried, but rather it was signed by Fried's wife, Joan Fried. The evidence also established that Joan Fried also notarized her husband's forged signature that she had signed on the affidavit.

On February 13, 1985, the trial court entered a judgment of foreclosure against defendant Brent. On April 9, 1985, the trial court entered an order approving the sheriff's report of sale and distribution. JoJan acquired the certificate of foreclosure and sale. JoJan was issued a sheriff's deed conveying the involved property to JoJan.

On October 11, 1985, Brent filed a special and limited appearance in the proceedings to contest the trial court's jurisdiction over his person on the grounds that he had not been properly served by summons or publication or with notice of the proceedings. On January 31, 1986, the trial court conducted an evidentiary hearing on the issue of JoJan's diligence in attempting to locate Brent's residence. On February 11, 1986, the trial court denied Brent's special and limited appearance, declined to vacate the judgment of foreclosure and sale, and dismissed Brent's special and limited appearance, all nunc pro tunc January 31, 1986.

On March 4, 1986, Brent filed a post-trial motion to reconsider the denial of his special and limited appearance. On March 12, 1986, Brent filed an addition to his post-trial motion to reconsider in which he prayed that all proceedings "be vacated, arrested and held for nought." On April 4, 1986, the trial court denied Brent's post-trial motion to reconsider and to vacate, arrest, and hold for naught the proceedings and judgment.

On April 28, 1986, Brent filed a motion to expunge void judgment. Also on that same day, JoJan filed a special appearance. On May 2, 1986, JoJan filed a motion to quash Brent's service upon JoJan notice of Brent's motion to expunge void judgment.

On June 6, 1986, the trial court sustained JoJan's motion to quash the service of Brent's notice of motion to expunge void judgment served upon JoJan and denied Brent's motion to expunge void judgment. On July 3, 1986, Brent filed the following documents: (1) a motion to vacate paragraph 2 of the trial court's June 6, 1986, order, which denied the motion to expunge; (2) an amended motion to expunge void judgment; and (3) memorandum in support of said motion. On August 19, 1986, the trial court entered an order, vacating that portion of its June 6, 1986, order which denied Brent's motion to expunge void judgment. The trial court held that proper service of process on JoJan of the motion to expunge void judgment was required before the trial court could grant a hearing on Brent's motion to expunge void judgment.

JoJan filed a motion in this court to dismiss the instant appeal, which was ordered taken with the case. In JoJan's motion to dismiss the appeal, JoJan contends that the February 13, 1985, judgment of foreclosure against Brent was not a final order from which an appeal could be taken, but assuming, arguendo, that it was a final order, Brent did not file a notice of appeal from the February 13, 1985, judgment of foreclosure within 30 days of its entry, as required by Supreme Court Rule 303 (107 Ill. 2d R. 303(a)). In response, Brent contends in this multiple-party case that, although the February 13, 1985, judgment of foreclosure may have been a final appealable order, but because the judgment was ...


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