Appeal from the Circuit Court of McHenry County. No. 06-ED-13 Honorable Michael T. Caldwell, Judge, Presiding.
The opinion of the court was delivered by: Justice Hudson
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.
The trial court granted a petition that Terrence Nagel and Bonnie Nagel filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). The petition asked the court to vacate a July 26, 2007, judgment that purported to give the Village of Algonquin title to certain land in the Village. That land included property that the Nagels were using for their driveway. The timing of the petition was such that granting it could be proper only if the judgment was void. The Nagels asserted that the Village had not obtained personal jurisdiction over them, so that the judgment was void as to them. The trial court agreed. The Village now argues that it obtained personal jurisdiction over the Nagels by publication service. We disagree, as a plaintiff cannot obtain personal jurisdiction over a defendant that it has never sought to identify. We therefore affirm.
On December 29, 2006, the Village filed a complaint for the eminent-domain condemnation of a group of streets and associated tree-lawn/parkway areas within the Village.*fn1 In the suit, the Village sought fee-simple title to all of the areas designated as streets and all of the bordering tree-lawn/parkway areas. The property that the Village sought was thus a series of strips of land 60 feet wide with many interconnections. Some of the streets that the developer had platted had never been built, but the Village nevertheless sought to condemn the land designated for the unbuilt streets.
In the complaint, the Village named as defendants Jas. A. Lowe, Clarence J. Ebel, Benjamin
C. Getzelman, their heirs and assigns, and two land trusts that had banks as trustees. It further alleged that other persons might exist with assorted interests in the property and named these persons as defendants under the designations of "unknown owners" and "non-record claimants."
Accompanying the complaint was an "Affidavit for Publication Regarding Unknown Owners and Non-Record Claimants." In it, an attorney for the Village averred as follows:
"Affiant *** states that in addition to the persons designated by name on the Complaint filed in the above cause, there may be other person(s) who are interested in said action who have or claim some right, title, interest or a lien in, to or upon the real property, or some part thereof, described in the Complaint; that the name of each such person(s) is unknown to the Plaintiff and to this Affiant, and upon diligent inquiry, cannot be ascertained, and such other persons are made parties defendant to said action by the name and description of 'unknown owners.'
Affiant further states, in addition to persons designated by name on the Complaint filed in the above case, and 'unknown owners' there may be other parties who have an interest in the Premises that have not yet been recorded, cannot be determined by Plaintiff, and such other persons are made parties defendant to said action by the name and description of 'non-record claimants.' "
On February 1, 2007, the Village filed a publisher's certificate of publication that was addressed to all the parties listed in the complaint and that purported to make all of them parties to the eminent-domain action.
The Village filled affidavits of personal service on the two bank trustees.
On March 9, 2007, the Village filed a second affidavit for service by publication in which it sought to serve Getzelman, Lowe, Ebel, and their heirs and assigns. In that affidavit, counsel for the Village averred that, despite diligent inquiry, the names of the heirs and assigns remained unknown and they could not be found. In a second affidavit, a private investigator averred that he had sought Getzelman, Lowe, and Ebel and could not find them, but he had evidence ...