{ "id": 5283719, "name": "BATTISTA PECORARO, Plaintiff-Appellee, v. LOUIS KESNER, Defendant-Appellant", "name_abbreviation": "Pecoraro v. Kesner", "decision_date": "1991-07-17", "docket_number": "No. 1-90-1597", "first_page": "1039", "last_page": "1046", "citations": [ { "type": "official", "cite": "217 Ill. App. 3d 1039" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "323 N.E.2d 803", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 717", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2701448 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0717-01" ] }, { "cite": "23 Harv. C.R.-C.L. L. Rev. 557", "category": "journals:journal", "reporter": "Harv. C.R.-C.L. L. Rev.", "year": 1988, "opinion_index": 0 }, { "cite": "243 N.E.2d 193", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "41 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851659 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0316-01" ] }, { "cite": "547 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "132 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5588592 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/132/0064-01" ] }, { "cite": "369 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "424 N.E.2d 1239", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3099208 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0001-01" ] }, { "cite": "230 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "38 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861276 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/38/0223-01" ] }, { "cite": "346 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2715948 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0599-01" ] }, { "cite": "481 N.E.2d 899", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 200", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3601133 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0200-01" ] }, { "cite": "348 N.E.2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2802320 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0637-01" ] }, { "cite": "364 N.E.2d 922", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5637536 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0242-01" ] }, { "cite": "391 N.E.2d 1067", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. 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LOUIS KESNER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nThis case arises from a forcible entry and detainer action filed by plaintiff, Battista Pecoraro, in the circuit court of Cook County. Defendant, Louis Kesner, appeals from the trial court\u2019s denial of his motion to quash service. The trial court struck defendant\u2019s jury demand and found for the plaintiff in a bench trial.\nDefendant contends that (1) his acts should not be deemed a general appearance although he personally appeared before the trial court and requested a continuance to obtain a lawyer and thereafter filed a jury demand, and again appeared before the court acknowledging that he had engaged an attorney; and (2) section 9 \u2014 107 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1989, ch. 110, par. 9 \u2014 107), providing for service by posting and mail, violates the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a72).\nFor the reasons set forth below, we find that defendant\u2019s actions constituted a general appearance and approve the trial court\u2019s decision to deny defendant\u2019s motion to quash service. However, we further find that the trial court erroneously struck defendant\u2019s jury demand and therefore reverse and remand for a new trial. We decline to address the issue of the constitutionality of the \u201cposting statute\u201d since the trial court acquired jurisdiction over defendant on the basis of defendant\u2019s voluntary acts and not on the basis of section 9 \u2014 107.\nOn March 15, 1990, plaintiff filed a complaint seeking past-due rent from defendant and possession of the apartment where defendant lived. A summons was also issued on the same day.\nThe record indicates that the sheriff never attempted personal service of the summons upon defendant. The sheriff\u2019s return of service stated that the summons was received by the sheriff\u2019s office on March 16, 1990, but the designated deputy sheriff did not receive the writ until March 23, 1990, which was past the \u201cdie date\u201d of March 22, 1990. The \u201cdie date\u201d signifies the date after which service of summons cannot be attempted.\nOn March 29, 1990, plaintiff\u2019s attorney mistakenly executed an affidavit stating that defendant could not be served because he could not be found and was concealed within the State. This affidavit, which plaintiff now concedes was incorrect, was the basis for subsequent notice by posting and mailing under section 9 \u2014 107.\nAs provided by statute, the sheriff\u2019s office then posted a \u201cNotice Requiring Appearance In Pending Action\u201d in three separate locations and also mailed one to defendant\u2019s residence. The notice stated that plaintiff had commenced an action for recovery of possession of the apartment occupied by defendant and that defendant was required to appear in court on April 12,1990.\nOn April 12, 1990, defendant and plaintiff\u2019s attorney appeared in court. The court granted defendant\u2019s request for a continuance to allow him an opportunity to obtain an attorney. The entire proceedings of that day were as follows:\n\u201cTHE CLERK: Pecararo versus Kesner.\nMR. KESNER: Here.\nTHE COURT: You are Louis Kesner?\nMR. KESNER: Yes, I am asking for a continuance.\nTHE COURT: Motion Defendant continue \u2014 what\u2019s the purpose?\nMR. KESNER: To get an attorney.\n[PLAINTIFF\u2019S ATTORNEY]: April 23rd at 2:00 p.m.\nTHE COURT: April 23, \u201990, 2:00 p.m.\nMR. KESNER: Thank you.\nTHE COURT: April 23rd.\n[PLAINTIFF\u2019S ATTORNEY]: Would you show Defendant present in court because the summons was by posting.\nTHE COURT: Defendant present in court.\u201d\nOn April 19, 1990, defendant filed and was granted an application to sue or defend as a poor person. This matter was before a different judge in an ex parte proceeding.\nOn April 23, 1990, defendant filed a jury demand. Later that same day, defendant, without counsel, again appeared in court. Defendant stated that he had counsel but his counsel was not able to attend this proceeding. Defendant then asked for a continuance, told the court that he had filed a jury demand, and mentioned the issue of defective service due to the sheriff\u2019s failure to attempt service of summons and the erroneous affidavit filed by plaintiff\u2019s attorney. The trial court found that defendant had filed a general appearance by previously appearing before the court. Accordingly, the trial court ruled that defendant had submitted to the jurisdiction of the court and waived any defect in service. The trial court also granted defendant\u2019s motion for a continuance and scheduled trial for May 3, 1990.\nOn May 3, 1990, the trial court entered another order continuing the case to May 31, 1990. The record indicates that on May 3 the parties and their attorneys attempted, unsuccessfully, to effect a settlement of the matter.\nOn May 10, 1990, the parties and their attorneys appeared in court. Defendant\u2019s counsel moved to enter a special and limited appearance and to quash service of summons on the grounds that service was defective. In addition, defendant asserted that the posting and mailing provisions of section 9 \u2014 107 violate the requirement of constitutional due process.\nThe trial court denied defendant\u2019s motion to quash service, finding that at this stage in the case, defendant had unquestionably submitted himself to the court\u2019s jurisdiction. However, the trial court also noted that if defendant had brought the sheriff\u2019s return of summons to the court\u2019s attention during his first court appearance, the court would have quashed service.\nThe trial then proceeded on May 10, but defendant did not participate and stood upon his special and limited appearance. The court entered judgment in favor of plaintiff for possession and $670 delinquent rent plus costs.\nOn appeal defendant maintains that he did not submit to the trial court\u2019s jurisdiction because his actions did not constitute a general appearance. Specifically, referring to the April 12, 1990, proceeding, defendant argues that a request by a pro se defendant for a continuance to obtain counsel, without more, does not constitute a general appearance.\nWe agree with defendant\u2019s contention that his actions on April 12 alone were insufficient to constitute a general appearance. However, we find that defendant\u2019s actions, taken in their totality, show that he invoked the court\u2019s jurisdiction through his subsequent conduct and will be deemed to have entered a general appearance.\nThe Code of Civil Procedure requires the filing of a special appearance before the filing of any pleading or motion; any appearance which does not conform to this filing sequence is automatically characterized as a general appearance. (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 301.) Section 2 \u2014 301 provides, in relevant part, as follows:\n\u201cPrior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. *** Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.\u201d\nDefendant makes a thoughtful argument concerning the responsibility of a trial judge to a pro se party in our system and presents a thorough and accurate picture of the risks to which such a party is exposed in a high volume \u201cforcible\u201d court where only a small percent of the defendants are represented by counsel. Generally any action on the part of the defendant, except to object to the jurisdiction, will amount to a general appearance. (Lord v. Hubert (1957), 12 Ill. 2d 83, 87, 145 N.E.2d 77, 80; People v. Estep (1955), 6 Ill. 2d 127, 128, 126 N.E.2d 637, 638.) The reason advanced for this rule is that \u201ca person cannot, by his voluntary action, invite the court to exercise its jurisdiction and at the same time deny that jurisdiction exists.\u201d Lord, v. Hubert, 12 Ill. 2d at 87, 145 N.E.2d at 80.\nDefendant correctly states that the word \u201cappearance\u201d for jurisdictional purposes means more than physical presence. (In re A.M. (1984), 128 Ill. App. 3d 100, 104, 470 N.E.2d 58.) The cases which have conferred jurisdiction by constituting defendant\u2019s acts a general appearance required more than a pro se defendant\u2019s mere request for a continuance to get an attorney. (See, e.g., People v. Estep (1955), 6 Ill. 2d 127, 126 N.E.2d 637 (counsel for defendants appeared and moved six times for a continuance); Williamsburg Village Owners\u2019 Association, Inc. v. Lauder Associates (1989), 181 Ill. App. 3d 931, 537 N.E.2d 857 (assertion of equitable defense in connection with special appearance); Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 408 N.E.2d 1019 (counsel for defendant initially entered a special appearance but then proceeded to participate in the trial without any order being entered as to the jurisdictional question); Difanis v. MartinTrigona (1979), 73 Ill. App. 3d 352, 353, 391 N.E.2d 1067 (the filing of a jury demand \u201cfor any and all, if there be any, subsequent proceedings in the state court\u201d); Slade v. Bowman (1977), 49 Ill. App. 3d 242, 364 N.E.2d 922 (after filing an appearance, defendant filed and argued a section 72 motion (now section 2 \u2014 1401)); McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 348 N.E.2d 500 (stipulation for attempted reconciliation in divorce proceeding deemed general appearance).) Accordingly, the issue becomes whether or not defendant did something beyond making a request for a continuance to obtain counsel which would recognize the power of the court to act and thus establish a general appearance. See In re A.M., 128 Ill. App. 3d at 104.\nIn the present case, we find that defendant did something more than merely make a pro se request for continuance in order to warrant a finding that his acts constituted a general appearance. As we have stated previously, defendant\u2019s initial appearance in court on April 12, 1990, to request time to obtain counsel was not sufficient to establish a general appearance. However, on April 23, 1990, defendant filed a jury demand, advised the court that he had obtained counsel and although raising the jurisdictional question, asked for an additional continuance.\nThe filing of a jury demand is clearly an assertion of rights which affect the course of the litigation. It cannot be characterized in the same manner as a mere request by a pro se defendant for an opportunity to obtain counsel. A jury demand confers upon the parties and the judicial system certain rights and obligations, and upon the filing of a jury demand, coupled with defendant\u2019s physical appearances before the court on two occasions, defendant is deemed to have made a general appearance in this case. Difanis v. Martin-Trigona (1979), 73 Ill. App. 3d 352, 391 N.E.2d 1067.\nSection 2 \u2014 1105 allows a defendant desirous of a trial by jury to file a demand not later than the filing of his or her answer. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1105.) Statutes regulating the right to a jury trial should be liberally construed in favor of allowing this right, and the inclination of the court should be to protect and to enforce this right. People ex rel. Raines v. Biggs (1985), 135 Ill. App. 3d 200, 481 N.E.2d 899.\nAt the trial and during this appeal, defendant stood on his special appearance. As noted, the trial court erred in striking defendant\u2019s jury demand and proceeded to judgment in a bench trial. It would be a neat bit of casuistry if we allowed this court to impose jurisdiction because of the jury demand and allow the trial court to erroneously strike the jury demand as not being timely.\nWhile defendant\u2019s jurisdictional theory of the case restrains him from objecting to the error in striking the jury demand, this court is not so precluded. Supreme Court Rule 366 empowers a reviewing court, in the exercise of its responsibility to obtain a just result, to decide a case on grounds not raised by the parties. (134 Ill. 2d R. 366.) The authority of courts to predicate their decision on matters not raised on appeal is beyond dispute. Occidental Chemical Co. v. Agri Profit Systems, Inc. (1976), 37 Ill. App. 3d 599, 346 N.E.2d 482.\nThe prohibition against raising issues not raised in the trial court or not set forth in the notice of appeal is a limitation on the parties and not upon the jurisdiction of the reviewing courts. Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.\nWe elect to determine this controversy on the trial court\u2019s error in striking the jury demand. Because of the narrowness of defendant\u2019s appeal, this issue was not raised, but we believe there is ample authority for us to so act. (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239; Mitchell v. Mitchell (1977), 54 111. App. 3d 18, 369 N.E.2d 276; In re Application of County Treasurer (1975), 25 Ill. App. 3d 717, 323 N.E.2d 803.) So important is the need for a just result and for the maintenance of a sound and uniform body of precedent, that courts may be required to override considerations of waiver or procedure that stem from the adversary character of our system. Hux v. Roben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.\nAccordingly, we will follow Supreme Court Rule 366, which allows us to \u201center any judgment and make any order that ought to have been given or made, and make any other and further order and grant any relief *** that the case may require.\u201d 134 Ill. 2d R. 366(aX5).\nThe ruling by the trial court striking the jury demand was not an exercise of discretion relating to allowance of a late filed jury demand, but rather the striking of a properly filed and timely jury demand, and this erroneous belief of the trial court was reversible error.\nNext, defendant has asserted that the \u201cpost and mail\u201d provisions in section 9 \u2014 107 are unconstitutional, both facially and as applied in the present case, because they violate defendant\u2019s due process rights to be afforded adequate and proper notice of the pendency of plaintiff\u2019s action. We have decided that the jurisdiction of the trial court was dependent upon acts of the defendant rather than plaintiff\u2019s arrangement for service of process. It is clear that a reviewing court will decide a constitutional question only where it is essential to the disposition of the case and should avoid passing upon a constitutional issue if the case could be decided without its determination. In re Application of County Collector (1989), 132 Ill. 2d 64, 547 N.E.2d 107; Exchange National Bank v. Lawndale National Bank (1968), 41 Ill. 2d 316, 243 N.E.2d 193; Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239.\nAccordingly, we reverse the decision of the circuit court and order a new trial.\nReversed.\nCERDA, P.J., and RIZZI, J., concur.\nDefendant\u2019s brief urges that a pro se, indigent defendant in eviction proceedings is susceptible to the loss of his most fundamental property right, his place of abode, in summary proceedings before a belabored court and cites various commentaries and surveys, including Fusco, Collins & Birnbaum, \u201cChicago\u2019s Eviction Court: A Tenants\u2019 Court of No Resort,\u201d 17 Urb. L. Ann. 93, 114-15 (1979); \u201cJudgment Landlord: A Study of Eviction Court in Chicago\u201d (1978) by the same authors; and \u201cGideon\u2019s Shelter: The Need to Recognize Right to Counsel for Indigent Defendants in Eviction Proceedings,\u201d 23 Harv. C.R.-C.L. L. Rev. 557 (1988).", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Rudnick & Wolfe, of Chicago (Paul Homer, of counsel), for appellant.", "Herbert C. Goldman, P.C., of Chicago, for appellee." ], "corrections": "", "head_matter": "BATTISTA PECORARO, Plaintiff-Appellee, v. LOUIS KESNER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 90\u20141597\nOpinion filed July 17, 1991.\nRudnick & Wolfe, of Chicago (Paul Homer, of counsel), for appellant.\nHerbert C. Goldman, P.C., of Chicago, for appellee." }, "file_name": "1039-01", "first_page_order": 1061, "last_page_order": 1068 }