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Jones v. Unknown Heirs or Legatees of Fox

April 28, 2000


Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, No. 97--CH--197

Richard E. Grawey, Honorable Judge, Presiding.

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Plaintiffs Griffith Jones, Michael and Gary Lance, and Tami Dillon brought an action to quiet title to a 7½ acre parcel of land in Peoria County. A default judgment was subsequently entered in favor of plaintiffs on December 12, 1997. Appellant Wesley Fox (Fox), a purported heir of defendant Maymee Fox, filed a motion to vacate the judgment. The trial court denied the motion to vacate and also denied Fox's motion for reconsideration. We reverse and remand.


Before we consider the merits of this appeal, we first address plaintiffs' jurisdictional argument that Fox's appeal is untimely. Fox's motion to vacate the default judgment was brought pursuant to section 2--1301(g) of the Code of Civil Procedure (Code), which provides in part:

"(g) If any final judgment is entered against any defendant who has been served by publication with notice of the commencement of the action and who has not been served with a copy of the complaint, or received the notice required to be sent him or her by mail, or otherwise brought into court, and such defendant or his or her heirs, legatees, or personal representatives, as the case may require, shall, within 90 days after notice in writing given him or her of the judgment, or within 1 year after the judgment, if no notice has been given, appear in open court and petition to be heard touching the matter of the judgment, the court shall upon notice being given to the parties to such action who appeared therein and the purchaser at a sale made pursuant to the judgment, or their attorneys, set the petition for hearing and may allow the parties and the purchaser to answer the petition. If upon the hearing it appears that the judgment ought not to have been made against the defendant, it may be set aside, altered or amended as appears just; otherwise the petition shall be dismissed at petitioner's costs." (Emphasis added.) 735 ILCS 5/2--1301(g) (West 1998).

Fox's motion alleged that he had not been given notice of the judgment, and it was filed on December 10, 1998, slightly less than one year after judgment had been entered. On January 28, 1999, the trial court ruled that Fox's motion was "deficient" and granted him leave to amend. The amended motion was filed on February 17, 1999, and it was dismissed by the court as insufficient on April 27. On May 25, Fox filed a motion to reconsider. That motion was denied on June 15. Fox filed a notice of appeal on June 25.

Plaintiffs assert that Fox was required to appeal within 30 days from the April 27, 1999, dismissal of his motion to vacate. Instead, Fox filed a motion to reconsider, which plaintiffs characterize as an impermissible second postjudgment motion. Therefore, plaintiffs maintain, the time to appeal expired on May 27, 1999. We disagree.

Supreme Court Rule 303(a)(2) provides that "[n]o request for reconsideration of a ruling on a post-judgment motion will toll the running of the time within which a notice of appeal must be filed." 155 Ill. 2d R. 303(a)(2). Consistent with this rule, our courts have repeatedly held that the filing of multiple post-judgment motions does not extend the time for filing an appeal. See, e.g., Sears v. Sears, 85 Ill. 2d 253, 422 N.E. 2d 610 (1981); Deckard v. Joiner, 44 Ill. 2d 412, 255 N.E. 2d 900 (1970); Department of Transportation v. Roodhouse, 104 Ill. App. 3d 880, 433 N.E. 2d 703 (1982); Dulin, Thienpont, Potthast & Snyder, Ltd. v. Packaging Personified, Inc., 89 Ill. App. 3d 647, 411 N.E. 2d 1173 (1980).

On the other hand, where a party files a petition for relief from judgment more than 30 days after judgment has been entered, such a petition is considered to be a new proceeding, not a post-judgment motion. 735 ILCS 5/2--1401 (West 1998); Burnicka v. Marquette National Bank, 88 Ill. 2d 527, 431 N.E. 2d 358 (1982). Accordingly, a motion to reconsider the denial of a section 2--1401 petition is not a second or successive postjudgment motion, and the time to appeal begins to run after the court rules on the motion to reconsider. Burnicka, 88 Ill. 2d 527, 431 N.E. 2d 358; see Northern Illinois Gas Co. v. Midwest Mole, Inc., 199 Ill. App. 3d 109, 556 N.E. 2d 1276 (1990) (distinction between post-judgment motion and section 2--1401 petition is critical in determining whether successive attempt to vacate prior judgment is permissible).

In this case, Fox's motion to vacate was filed more than 30 days after judgment had been entered, but it was brought pursuant to section 2--1301(g), rather than section 2--1401. Plaintiffs argue that a motion under section 2--1301 should not be considered a new proceeding, but should be treated as a continuation of the original suit. Plaintiffs point out that section 2--1401 expressly provides that proceedings under that section are not a continuation of the original action, while section 2--1301 contains no such provision. The sections also contain different notice requirements.

Notwithstanding these differences, we believe that a petition filed pursuant to section 2--1301(g) constitutes a new action, rather than a continuation of the prior proceeding. The general rule is that a trial court loses jurisdiction over a case and has no authority to vacate or modify a final judgment once 30 days have elapsed, unless a timely postjudgment motion has been filed. Beck v. Stepp, 144 Ill. 2d 232, 579 N.E. 2d 824 (1991); Gegenhuber v. Hystopolis Production, Inc., 277 Ill. App. 3d 429, 660 N.E. 2d 107 (1995); Northern Illinois Gas, 199 Ill. App. 3d 109, 526 N.E. 2d 1276. A postjudgment motion must ordinarily be filed within 30 days of judgment. See 735 ILCS 5/2--1202 (West 1998) (motions in jury cases); 735 ILCS 5/2--1203 (West 1998) (motions in non-jury cases); 735 ILCS 5/2--1301(e) (West 1998) (motion to vacate default judgment). Since no postjudgment motion was filed in this case within 30 days, the trial court lost jurisdiction to vacate its judgment. Once jurisdiction had been lost, the only means of challenging the judgment was through a collateral attack, by filing a petition under section 2--1401 (see Malone v. Cosentino, 99 Ill. 2d 29, 457 N.E. 2d 395 (1983) (petition under section 2--1401 is a collateral proceeding); Burchett v. Goncher, 235 Ill. App. 3d 1091, 603 N.E. 2d 1 (1991) (same) or by proceeding under section 2--1301(g) (see People v. O'Keefe, 18 Ill. 2d 386, 391, 164 N.E. 2d 5, 9 (1960) ("Any petition to vacate an order, judgment, or decree, filed more than thirty days after the entry thereof, even though made to the court that rendered it, constitutes a collateral attack.")). Therefore, a petition to vacate filed pursuant to section 2--1301(g) cannot be a "continuation" of a case over which the court has lost jurisdiction. It is instead a collateral attack on the judgment, an independent legal proceeding. Accordingly, when Fox's motion to vacate was dismissed on April 27, he had to either appeal from that order or file a postjudgment motion within 30 days. Fox filed a timely motion to reconsider on May 25. The trial court denied the motion on June 15, and Fox filed a timely notice of appeal on June 25. We find that we have jurisdiction over this appeal. We now consider whether the trial court erred in denying Fox's motion to vacate the default judgment.


Plaintiffs' complaint, filed pursuant to section 13--110 of the Code (735 ILCS 5/13--110 (West 1996)), alleged that the subject property had been vacant and unoccupied for not less than seven years, that plaintiffs had paid the real estate taxes due on the property from 1977 through 1996, and that plaintiffs had taken possession of the property. Plaintiffs' interest in the property was derived from a quitclaim deed from Murl Jones dated June 13, 1977. Service on defendants was made by publication, based on plaintiffs' affidavit that defendants' names and residences could not be determined despite diligent inquiry. See 735 ILCS 5/2--206 (West 1996) (service by publication); 735 ILCS 5/2--413 (West ...

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