People ex rel. Cole v. Miller

579 N.E.2d 1241, 220 Ill. App. 3d 182, 162 Ill. Dec. 427, 1991 Ill. App. LEXIS 1728

• Court: Appellate Court of Illinois
• Decided: October 4, 1991
• Docket: No. 3—90—0820
• Status: Published

Opinions

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Deena Cole, filed a petition to determine the existence of a father/child relationship between the respondent, Roger Paul Miller, and her minor child, G.D.M. An assistant State’s Attorney was assigned to the case, and he voluntarily dismissed the action. Subsequently, that order was held void by the trial judge. The respondent appeals.

The record shows that on September 22, 1987, an assistant State’s Attorney filed a voluntary motion to dismiss the petitioner’s complaint. On that date, Judge Bode granted the motion. Thereafter, on September 7, 1988, the State, pursuant to section 2—1401 (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401), filed a motion to vacate the order of dismissal. The motion incorporated the alternative methods of relief provided in that statute. That is, it requested relief under all the subsections, including subsection (f), which provides for relief from void orders.

The State argued that the order was void because no notice of the motion had ever been given to the parties, thereby depriving Judge Bode of the authority to enter such an order. Following a hearing, the trial court found that Judge Bode had no authority to enter an order dismissing the case on September 22, 1987, and as such, the order was void.

On appeal, the State argues that this appeal should be dismissed because we lack jurisdiction over the case since no final, appealable order has been entered. The State notes that it is weU settled that an order vacating a judgment because the judgment was void is not appealable. (Mabion v. Olds (1967), 84 Ill. App. 2d 291, 228 N.E.2d 188.) Such an order simply leaves the case pending and, as such, it is an order which is not final in character. (Alexander v. Burke (1972), 6 Ill. App. 3d 919, 287 N.E.2d 53.) The respondent counters, however, that this court has jurisdiction to determine whether the original judgment was in fact void.

We note that if, for jurisdictional purposes, we were to review the original judgment to determine whether it was in fact void, we would in effect be deciding the merits of the appeal. This is so because the only issue raised by the respondent on appeal is whether the trial court properly reinstated the petitioner’s suit. Thus, the respondent’s position would create a “chicken or the egg” situation which would render the holding in Alexander meaningless.

We therefore find that the trial court’s order vacating the prior judgment as void had the effect of leaving the original action against the respondent pending. Accordingly, there is no final and appealable order from which we can obtain jurisdiction. We therefore have no choice but to dismiss the appeal. Alexander v. Burke (1972), 6 Ill. App. 3d 919, 287 N.E.2d 53.

This appeal from the circuit court of Peoria County is dismissed.

Dismissed.

HAASE, J., concurs.