Marathon Finance Co. v. Pioneer Bank & Trust Co.

522 N.E.2d 248, 168 Ill. App. 3d 148, 118 Ill. Dec. 793, 1988 Ill. App. LEXIS 323
CourtAppellate Court of Illinois
DecidedMarch 16, 1988
Docket87-1118
StatusPublished
Cited by12 cases

This text of 522 N.E.2d 248 (Marathon Finance Co. v. Pioneer Bank & Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marathon Finance Co. v. Pioneer Bank & Trust Co., 522 N.E.2d 248, 168 Ill. App. 3d 148, 118 Ill. Dec. 793, 1988 Ill. App. LEXIS 323 (Ill. Ct. App. 1988).

Opinion

PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant Henry W. Disharoon sought to quash service of process by publication in a mortgage foreclosure case after entry of an order of default, a judgment for foreclosure and a sheriff’s sale, favoring plaintiff Marathon Finance Co. (Marathon), a holder of the note secured by the mortgage sought to be foreclosed by virtue of an assignment from the original mortgagee, Cheker Oil Company. Other defendants in the case have not joined in this appeal. Disharoon presents as the issue on appeal whether the circuit court lacked jurisdiction over him due to Marathon’s failure to comply with the requirements for service by publication. Marathon claims that the appeal is so meritless and frivolous as to warrant sanctions.

On September 30, 1985, Marathon filed a verified complaint against defendants Pioneer Bank & Trust Company (Pioneer), as trustee of trust No. 23481 (Trust), Harry Yourell, Cook County registrar of deeds, Disharoon and “Unknown Owners” to foreclose the mortgage and to foreclose their equitable rights to redeem. Relief requested included a judicial sale of the real estate involved, a personal deficiency judgment against Disharoon as guarantor of the note, and appointment of a receiver after the property sale if a deficiency then existed. Marathon also sought attorney fees, costs and expenses. Disharoon evidently guaranteed the promissory note for $80,000 from Pioneer to Cheker Oil Company, which the latter assigned to Marathon. A mortgage rider, however, characterized Disharoon as the mortgagor.

Service of summons on Disharoon was not attempted until October 9, 1985. The deputy sheriff reported that he could not obtain personal service because Disharoon was out of town, according to Disharoon’s officer manager. Before personal service was attempted, however, an affidavit supporting service by publication was sworn to on September 30, 1985, by Marathon’s attorney, who averred that upon due inquiry Disharoon could not be found for personal service and that on diligent inquiry his residence could not be ascertained. Service by publication was undertaken in the Chicago Daily Law Bulletin on October 2, 9 and 16,1985. A notice was mailed to Disharoon on October 8,1985.

On October 10, 1985, defendant Yourell filed an answer, but no other defendants filed any responses. On November 19, 1985, Marathon moved for summary judgment, attaching affidavits from its assistant treasurer and attorney. An order of default was entered and on November 19, 1985, the circuit court entered judgment for foreclosure and sale, finding all defendants properly before it. The circuit court found that $86,465.31 was due Marathon and the rights of all other parties in the property were inferior to Marathon’s lien. The court authorized the sale of the property by the sheriff unless the judgment was paid within three days and declared that if the premises were not redeemed within six months defendants would be forever barred from all rights of redemption of the property.

On January 14, 1986, the property was sold to Marathon for $15,000 at a sheriff’s sale with a resulting deficiency of $73,541.25. On January 17, 1986, the circuit court approved the sheriff’s report of sale and distribution.

On October 14, 1986, Disharoon filed a special appearance and moved to quash service, alleging lack of diligence in attempting to obtain service on him and thus a lack of jurisdiction. (See R. W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 308-10, 489 N.E.2d 1360.) On October 30, 1986, Disharoon filed an amended motion to quash service of process, pointing out that the service by publication began on October 2, 1985, one week prior to personal service being attempted on October 9, 1985. Marathon moved to strike both the original and amended motions to quash. On November 18, 1986, after a hearing, the circuit court denied Disharoon’s motion to quash with an order containing appealable language pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). On December 18, 1986, Disharoon moved for rehearing and reconsideration, which was denied in an order entered March 13,1987. Disharoon appeals.

I

It is unclear from the record as to why the circuit court appended Rule 304(a) language to the dismissal order. Even were we to assume its applicability here, we first note that in Elg v. Whittington (1987), 119 Ill. 2d 344, 352-54, our supreme court held that filing a post-judgment motion cannot extend the time period for filing a Rule 304(a) notice of appeal. That opinion was modified to make the Rule 304(a) decision prospective and applicable in those cases in which the notice of appeal was due to be or was filed on or after November 16, 1987. In the case sub judice, the circuit court denied Disharoon’s motion to quash on November 18, 1986. Disharoon moved for rehearing and reconsideration on December 18, 1986. That motion was denied on March 13, 1987, thereby leaving undisturbed the foreclosure of the mortgage and the equitable interest Disharoon may have had. Disharoon’s appeal, having been filed on April 13, 1987, precedes Elg and will be considered on its merits.

II

Disharoon first claims that Marathon’s failure to comply with publication service requirements resulted in depriving the circuit court of jurisdiction over him.

In the absence of a general appearance, personal jurisdiction is acquired only through service of process according to statute. A judgment lacking service of process, absent a waiver of process or a general appearance, is void. (State Bank of Lake Zurich v. Thill (1986), 113 Ill. 2d 294, 308, 497 N.E.2d 1156; see Bell Federal Savings & Loan Association v. Horton (1978), 59 Ill. App. 3d 923, 930-31, 376 N.E.2d 1029.) Strict compliance with statutory requirements for publication service under section 2 — 206 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 206) is necessary. (In re Marriage of Wilson (1986), 150 Ill. App. 3d 885, 889, 502 N.E.2d 447; First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 906, 393 N.E.2d 574.) The requirements of “due inquiry” and “diligent inquiry” are not useless phrases and are not satisfied by perfunctory representations. Rather, honest and well-directed investigative efforts must be conducted to ascertain any unknown names or addresses, as completely as circumstances permit. (Graham v. O’Connor (1932), 350 Ill. 36, 40-41, 182 N.E. 764; City of Chicago v. Moran (1974), 17 Ill. App. 3d 515, 520, 308 N.E.2d 324; City of Chicago v. Leakas (1972), 6 Ill. App. 3d 20, 27, 284 N.E .2d 449.) If statutorily mandated inquiries are not made, the affidavit does not speak the truth and cannot confer jurisdiction. (Graham v. O’Connor, 350 Ill. at 41; see Bell Federal Savings & Loan Association v. Horton, 59 Ill. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Urban Partnership Bank v. Chicago Title Land & Trust Co.
2017 IL App (1st) 162086 (Appellate Court of Illinois, 2017)
Urban Partnership Bank v. Chicago Title Land and Trust Company
2017 IL App (1st) 162086 (Appellate Court of Illinois, 2017)
Equity Residential Properties Management Corp. v. Nasolo
847 N.E.2d 126 (Appellate Court of Illinois, 2006)
Mugavero v. Kenzler
739 N.E.2d 979 (Appellate Court of Illinois, 2000)
Harrison v. Sears, Roebuck & Co.
546 N.E.2d 248 (Appellate Court of Illinois, 1989)
Hickey v. UNION NAT'L BK. & TR. CO.
547 N.E.2d 4 (Appellate Court of Illinois, 1989)
Hickey v. Union National Bank & Trust Co.
547 N.E.2d 4 (Appellate Court of Illinois, 1989)
Lake County Trust Co. v. Two Bar B, Inc.
537 N.E.2d 1015 (Appellate Court of Illinois, 1989)
People v. King
524 N.E.2d 723 (Appellate Court of Illinois, 1988)
Continental Insurance v. Walsh Construction Co.
524 N.E.2d 1131 (Appellate Court of Illinois, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
522 N.E.2d 248, 168 Ill. App. 3d 148, 118 Ill. Dec. 793, 1988 Ill. App. LEXIS 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marathon-finance-co-v-pioneer-bank-trust-co-illappct-1988.