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Revolution Portfolio, LLC v. Beale

June 30, 2003

REVOLUTION PORTFOLIO, LLC, PLAINTIFF-APPELLEE,
v.
JOSEPH S. BEALE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 00 L 13840 Honorable Thomas P. Quinn, Judge Presiding.

The opinion of the court was delivered by: Justice Hall

UNPUBLISHED

The defendant, Joseph S. Beale, appeals from orders of the circuit court of Cook County holding the defendant in contempt for failing to submit to an examination pursuant to a citation to discover assets, denying the defendant's motion to quash the citation and lifting the stay of a writ of body attachment.

On appeal, the defendant contends that the circuit court lacked personal jurisdiction over him because the citation to discover assets was served on his attorneys. As a result, he maintains that the orders holding him in contempt and issuing a writ of body attachment are void.

The following facts are undisputed and are pertinent to our review.

The plaintiff revived a Florida judgment against the defendant in Illinois. *fn1 The plaintiff then issued a citation to discover assets (the citation) to the defendant which was returnable on August 15, 2001. The citation was served on the law firm of Gould & Ratner, attorneys who had represented the defendant. On August 14, 2001, one day prior to the return date of the citation, the circuit court issued a rule to show cause as to why the defendant should not be held in contempt of court for failing to appear on August 14, 2001, and respond to the citation. On September 10, 2001, the circuit court entered an order allowing the sheriff of Cook County to serve the rule to show cause by leaving a copy of the rule with the doorman or concierge of the defendant's residence and mailing a copy to the defendant. According to the record on appeal, service of the rule on the concierge of the defendant's residence was made on September 26, 2001, and a copy of the rule was mailed to the defendant on the same date.

On October 4, 2001, the defendant failed to appear. The circuit court entered an order holding the defendant in contempt of court and issued a writ of body attachment with bond set at $3,000. On October 11, 2001, the defendant filed a motion to vacate the rule to show cause and the contempt order and to quash and to stay the enforcement of the writ of body attachment. On October 18, 2001, the circuit court stayed the writ of body attachment until November 7, 2001.

On November 7, 2001, the circuit court denied the defendant's motion to quash and lifted the stay of the writ of body attachment.

On December 5, 2001, the defendant filed his notice of appeal from the circuit court's orders of October 4, 2001, finding him in contempt and November 7, 2001, denying the motion to quash and lifting the stay of the writ of body attachment.

At the outset, the plaintiff requests that it be allowed to refer to "relevant matters which occurred after [the defendant] filed this appeal and are thus not shown in the record on appeal." The plaintiff asserts that the defendant appeared in court on January 10, 2002, in response to a letter from the sheriff indicating that he would be arrested unless he appeared voluntarily on the body attachment. The plaintiff further asserts that the defendant complied with the circuit court's January 10, 2002, order that he appear on February 1, 2002, for his examination and production of documents. The plaintiff has included a copy of the circuit court's January 10, 2002, order as well as a copy of the transcript of the proceedings on August 14, 2001. The plaintiff did not move to supplement the record with these documents.

Attachments to briefs not included in the record on appeal are not properly before the reviewing court and cannot be used to supplement the record. Carroll v. Faust, 311 Ill. App. 3d 679, 683, 725 N.E.2d 764, 768 (2000). We will therefore not consider the events that occurred after the filing of the notice of appeal in this case or the references to either the January 10, 2002, order or the August 14, 2001, report of proceedings in our disposition of this case.

Although neither party has raised the question of this court's jurisdiction, a reviewing court has a duty to consider sua sponte its jurisdiction. Vowell v. Pedersen, 315 Ill. App. 3d 665, 665, 734 N.E.2d 169, 170 (2000). We have a duty as an appellate court to dismiss an appeal if jurisdiction is wanting. Vowell, 315 Ill. App. 3d at 667, 734 N.E.2d at 171.

The law is well settled that a void order or judgment can be attacked at any time or in any court, in either a direct or collateral proceeding. JoJan Corp. v. Brent, 307 Ill. App. 3d 496, 502, 718 N.E.2d 539, 544 (1999). Instead of originating under any specific provision of the Code of Civil Procedure, a motion for relief from a void order or judgment arises from the inherent powers of the court to expunge void acts from its records. JoJan Corp., 307 Ill. App. 3d at 502, 718 N.E.2d at 544. However, jurisdiction is not vested with the reviewing court merely because an order or judgment is, or is alleged to be, void, and compliance with the rules governing appeals is necessary before a reviewing court may properly consider an appeal from a judgment or order that is, or is asserted to be, void. JoJan Corp., 307 Ill. App. 3d at 504, 718 N.E.2d at 545-46.

In his jurisdictional statement, the defendant asserts that this court has jurisdiction pursuant to Supreme Court Rule 304(b)(5) (155 Ill. 2d R. ...


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