{
  "id": 5275522,
  "name": "In re PARENTAGE OF G.D.M., a Minor (The People ex rel. Deena Cole, Petitioner-Appellee, v. Roger Paul Miller, Respondent-Appellant)",
  "name_abbreviation": "People ex rel. Cole v. Miller",
  "decision_date": "1991-10-04",
  "docket_number": "No. 3\u201490\u20140820",
  "first_page": "182",
  "last_page": "184",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T21:04:36.621238+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re PARENTAGE OF G.D.M., a Minor (The People ex rel. Deena Cole, Petitioner-Appellee, v. Roger Paul Miller, Respondent-Appellant)."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE STOUDER\ndelivered the opinion of the court:\nThe 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\u2019s 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.\nThe record shows that on September 22, 1987, an assistant State\u2019s Attorney filed a voluntary motion to dismiss the petitioner\u2019s complaint. On that date, Judge Bode granted the motion. Thereafter, on September 7, 1988, the State, pursuant to section 2\u20141401 (Ill. Rev. Stat. 1989, ch. 110, par. 2\u20141401), 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.\nThe 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.\nOn 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.\nWe 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\u2019s suit. Thus, the respondent\u2019s position would create a \u201cchicken or the egg\u201d situation which would render the holding in Alexander meaningless.\nWe therefore find that the trial court\u2019s 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.\nThis appeal from the circuit court of Peoria County is dismissed.\nDismissed.\nHAASE, J., concurs.",
        "type": "majority",
        "author": "PRESIDING JUSTICE STOUDER"
      },
      {
        "text": "JUSTICE SLATER,\ndissenting:\nI do not agree that this court does not have jurisdiction. The State\u2019s motion to vacate was brought pursuant to section 2\u20141401 of the Civil Practice Act (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141401). It is clear that if the trial court had vacated the dismissal order on the basis of the section 2\u20141401 petition that order would be appealable notwithstanding the fact that it is not a final order. (134 Ill. 2d R. 304(b)(3).) The trial court, however, found that the dismissal order was void. The majority accepts this determination without question and, relying on the \u201cwell-settled\u201d rule that an order vacating a void judgment is not appealable, dismisses the appeal. The majority\u2019s decision begs the question of whether the dismissal was in fact void. It appears to me that it was not. The court had both subject matter and personal jurisdiction when it dismissed the parentage petition. I would vacate the trial court\u2019s order and remand for a determination of the merits of petitioner\u2019s section 2\u20141401 petition.\nWith regard to the majority\u2019s \u201cchicken or the egg\u201d analysis, to the extent that it suggests that this court is precluded from determining whether jurisdiction exists because such a finding would address the merits of the appeal, I strongly disagree. First, the narrow jurisdictional inquiry is whether or not the dismissal order was void. If it was, the appeal should be dismissed; if it was not, then we should remand for a determination of the merits of petitioner\u2019s section 2 \u2014 1401 petition. Second, under the majority\u2019s reasoning, a finding by the circuit court that a dismissal, any dismissal, is void precludes appellate review and forces the opposing party to continue with the litigation. This is so whether the dismissal was void or not because the majority is unwilling to examine the threshold question of voidness for fear of determining the merits of the appeal.\nIn my opinion the majority confuses the concept of jurisdiction over the appeal with that of this court\u2019s power to determine jurisdiction. While the former is limited by a variety of concerns (e.g., avoidance of piecemeal appeals), the latter is inherent and plenary. This court is not deprived of its ability, indeed its obligation, to determine jurisdiction merely because the two may sometimes overlap. I respectfully dissent.",
        "type": "dissent",
        "author": "JUSTICE SLATER,"
      }
    ],
    "attorneys": [
      "Philip M. Pollock, of Peoria, for appellant.",
      "Kevin W. Lyons, State\u2019s Attorney, of Peoria (Terry A. Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "In re PARENTAGE OF G.D.M., a Minor (The People ex rel. Deena Cole, Petitioner-Appellee, v. Roger Paul Miller, Respondent-Appellant).\nThird District\nNo. 3\u201490\u20140820\nOpinion filed October 4, 1991.\nRehearing denied November 7, 1991.\nSLATER, J., dissenting.\nPhilip M. Pollock, of Peoria, for appellant.\nKevin W. Lyons, State\u2019s Attorney, of Peoria (Terry A. Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for appellee."
  },
  "file_name": "0182-01",
  "first_page_order": 204,
  "last_page_order": 206
}