{
  "id": 2704912,
  "name": "Jerby H. Hecko et al., Plaintiffs-Appellants, v. The City of Chicago et al., Defendants-Appellees; The City of Chicago, Plaintiff-Appellee, v. Jerry H. Hecko et al., Defendants-Appellants",
  "name_abbreviation": "Hecko v. City of Chicago",
  "decision_date": "1975-01-14",
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    "judges": [],
    "parties": [
      "Jerby H. Hecko et al., Plaintiffs-Appellants, v. The City of Chicago et al., Defendants-Appellees. The City of Chicago, Plaintiff-Appellee, v. Jerry H. Hecko et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE STAMOS\ndelivered the opinion of the court:\nThis appeal concerns two actions, one at law and one in equity, in connection with the City of Chicago\u2019s demolition, on September 14,1967, of a building belonging to Jerry H. and Clarice Hecko (hereafter the Heckos). On August 1, 1968, the Heckos brought an action at law against the City of Chicago for damages allegedy incurred when the City, without their knowledge and without notice to them, demolished a building on property they owned jointly. This suit was dismissed because the allegedly required statutory \u201cnotice of injury\u201d failed to state the residence address of the person injured, and the Heckos have appealed (No. 56498). (Ill. Rev. Stat. 1965, ch. 85, par. 8 \u2014 102.) The Heckos have also appealed (No. 57912) from the trial court\u2019s denial of their motion to vacate the decree of foreclosure of the City\u2019s demolition hen because the City did not provide them with any notice either of the proceedings leading to the decree of demolition (which also created the hen sought to be foreclosed) or of the subsequent proceedings to foreclose the demolition hen. On this consolidated appeal, the Heckos contend: (1) their complaint at law for wrongful demolition should not have been dismissed for failure to comply with the 6-month notice requirement of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (hereafter \u201cTort Immunity Act\u201d), because section 2 \u2014 101 of the Tort Immunity Act specifically exempts from its provisions an action, such as this one for a wrongful demolition, brought under the provisions of section 1 \u2014 4\u20147 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 85, pars. 2 \u2014 101 & 8 \u2014 102, and ch. 24, par. 1 \u2014 4\u20147); (2) both the decree of demolition and the decree of foreclosure were void because entered without notice, and the filing of a special appearance on behalf of the Heckos in the original demolition proceedings did not waive the jurisdictional issue.\nThese demolition proceedings were initiated July 24, 1967, when the City of Chicago filed a complaint in chancery (case no. 67 CH 3788) against the Heckos alleging that on April 3, 1967, and at other times, certain violations of the Municipal Code of Chicago existed in property owned jointly by the Heckos and commonly known as 1618 North Burling, in Chicago. The complaint, which set out in detail the alleged violations, sought a fine in the amount of $800; the appointment of a receiver, if necessaiy, to correct the conditions; an order to demolish the premises; judgment against the defendants and a lien on the property for the costs of demolition, reasonable attorneys\u2019 fees, and court costs; and a temporary and permanent injunction requiring the defendants to correct the violations.\nIt appears from the pleadings that the City demolished the building on the property on September 14, 1967, pursuant to a decree of demolition entered on July 13, 1967, or July 21, 1967, although this decree is not in the record. The common-law record contains no proof of service of process in 67 CH 3788.\nOn November 9, 1967, the Heckos filed a special appearance in the demolition suit (67 CH 3788) questioning the jurisdiction of the court over their persons in that they had \u201cnot been served with summons.\u201d At a hearing on December 24, 1967, the trial court stated that there was nothing in the court file \u201cto indicate\u201d that the Heckos were \u201cserved by the Sheriffs Office,\u201d and nothing in the file to show that the City of Chicago \u201cpublished.\u201d The court concluded: \u201cIf that is the case, the default order was entered erroneously.\u201d The court advised the Heckos\u2019 attorney that his clients might have an action at law against the City for wrongful demolition.\nOn June 18, 1968, the City filed a complaint to foreclose its demolition lien and the case was assigned no. 68 CH 2506. Following service by a publication, a decree of foreclosure in favor of the City in the amount of $1,759.69 was entered on March 19, 1970. On May 20, 1970, an order was entered confirming a sheriff\u2019s sale of the property to the City of Chicago for the amount of $1,869.50 in satisfaction of the demolition hen.\nOn May 26, 1971, the Heckos filed a petition to vacate, which, as subsequently amended, alleged that the original decree of demolition entered in case 67 CH 3788 on July 13, 1967, was \u201cvoid\u201d because the Heckos were not served with summons and no publication was made; that they had had no notice of the complaint to foreclose the demolition lien, or of the subsequent sheriffs sale; that, in May of 1971, their attorney had examined the tract book in the office of the recorder of deeds and had discovered that the lien had been filed and that the City had purchased the property at the sheriff\u2019s sale; that the petition to vacate was filed a few days later. Although the petition stated that it was brought under section 72 of the Civil Practice Act, the Heckos questioned \u201cthe jurisdiction of the court\u201d stating: (1) the original demolition suit (67 CH 3788) was void because they were not served with summons and no publication was made; (2) the affidavit for publication filed in the demolition lien foreclosure suit (68 CH 2506) which stated that upon diligent inquiry the Heckos could not be found was \u201cdefective,\u201d \u201cerroneous\u201d and \u201cfaulty,\u201d and did not set out the last known address of the defendants; (3) there was no \u201cdiligent inquiry\u201d made to discover their address in case 68 CH 2506, because the City could have inquired as to the whereabouts of the Heckos from the attorney they had employed who had filed a special appearance in the demolition proceeding (67 CH 3788) and who had, on March 14, 1968, served the City with a notice of claim for wrongful demolition.\nThe City moved to strike and dismiss the amended petition on several grounds: that the Heckos were precluded from collaterally attacking the 1967 demolition decree because of the 2-year statute of limitations contained in section 72 of the Civil Practice Act; that the filing of the special appearance in the original demolition suit charged the Heckos with knowledge of the demolition hen; and that the Heckos\u2019 failure to participate further in the demolition proceedings barred their section 72 petition because it showed a lack of due diligence. The motion of the City was granted on May 11, 1972, and the trial court subsequently refused to vacate that order in a written order dated June 29,1972 in which the court stated, in part, as follows:\n\u201c[T]he court finds:\n1. That the decree of demolition entered in the previous case of City of Chicago v. Jerry Hecko, et al, 67CH3788, not having been appealed within the prescribed time and the remedy under Section 72 of the Civil Practice Act having not been pursued, and the defendant, [sic] Jerry and Clarice Hecko, having knowledge of such proceeding by their counsel, that said decree was valid.\n2. That the said defendants have shown no affirmative, valid defense in this instant action.\u201d\nMeanwhile, on August 1, 1968, the Heckos had brought an action at law against the City for wrongful demolition. This suit was dismissed for failure to comply with the statutory 6-month notice requirement because the notice did not state \u201cthe residence of the person injured.\u201d Ill. Rev. Stat. 1965, ch. 85, par. 8 \u2014 102.\nPlaintiffs\u2019 first contention is that section 2 \u2014 101 of the Tort Immunity Act exempts from its 6-month notice provisions actions, such as that in the case at bar, brought under section 1 \u2014 4\u20147 of the Illinois Municipal Code. Section 2 \u2014 101(e) of the Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 2 \u2014 101(e)) provides:\n\u201c\u00a7 2 \u2014 101. Construction-Other relief\nNothing in this Act affects tire right to obtain relief other than damages against a local public entity or public employee. Nothing in this act affects the liability, if any, of a local public entity or public employee, based on:\n* * #\ne) Section 1 \u2014 4\u20147 of the 'Illinois Municipal Code\u2019, approved May 29, 1961, as heretofore or hereafter amended.\u201d Laws of Illinois 1965, \u00a7 2 \u2014 101, at 2985 (approved August 13, 1965).\nSection 1 \u2014 4\u20147 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 1 \u2014 4\u20147 provides:\n\u201c\u00a7 1 \u2014 4\u20147. Damages to property by removal, etc., of unsafe or unsanitary buildings \u2014 Liability\nThe municipality shall be liable for any injury occasioned by actionable wrong to property by the removal, destruction or vacation, in whole or in part, of any unsafe or unsanitary building, by any municipal officer, board or employee charged with authority to order or execute such removal, destruction or vacation, if such removal, destruction or vacation is pursuant to valid statutes, ordinances or regulations, and if such officer, board or employee has acted in good faith, with reasonable care and probable cause.\u201d Laws of Illinois 1961, \u00a7 1 \u2014 4\u20147, at 589 (approved May 29, 1961).\nThe precise point at issue here was raised, but not decided in the case of City of Chicago v. Vickers, 8 Ill.App.3d 902, 291 N.E.2d 315. As the court there stated, section 2 \u2014 101 of the Tort Immunity Act \u201cclearly\u201d is intended to eliminate governmental immunity in any action brought under section 1 \u2014 4\u20147 of the Municipal Code. We therefore decide that the statutory notice requirements of the Tort Immunity Act do not apply to an action, such as that at bar, in which liability arises under the provisions of section 1 \u2014 4\u20147 of die Illinois Municipal Code. The City misapprehends the meaning of the following passing reference to section 1 \u2014 4\u20147 in Arnolt v. City of Highland Park, 52 Ill.2d 27, 32, 282 N.E.2d 144: \u201cSection 1 \u2014 4\u20147 of the Illinois Municipal Code deals specifically with liability\u2019 for injuries to third persons occasioned by the removal or destruction of buildings by public employees.\u201d The City suggests that \u201cthird persons\u201d refers solely to persons other than the owners of such buildings. Read in context, however, it is clear that \u201cthird persons\u201d refers to all persons other than the local governmental entity and the public employee(s) involved.\nWe now consider whether the petition to vacate the decree of foreclosure was properly denied. The order appealed from denied the Heckos\u2019 petition on the ground that the original 1967 decree of demolition had not been appealed, because more than 2 years had passed since the entry of the 1967 demolition decree, and because the Heckos had shown no meritorious defense. In so ruling, the trial court construed the petition to vacate as aimed at the 1967 demolition decree and as one seeking the usual equitable relief specified in section 72(1) of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 72(1).) However, we think it is clear that the petition to vacate was one to vacate the decree of foreclosure of March 19, 1970. A motion to vacate the demolition decree, in view of the fact that the building had already been demolished, would have been an empty gesture.\nIt has been held that a motion challenging jurisdiction and a motion to vacate under section 72 of the Civil Practice Act are entirely different motions based on different grounds which do not litigate the same matters. (Keel v. Kostka, 106 Ill.App.2d 172, 245 N.E.2d 607.) A motion under section 72 is, nevertheless, an appropriate method for vacating a void judgment. (Lake Shore Savings & Loan Association v. American National Bank & Trust Co., 91 Ill.App.2d 143, 148, 234 N.E.2d 418.) The record before the court in the original demolition action which also purported to create the lien sought to be foreclosed does not contain any proof of service or an affidavit supporting service by publication. In fact, the report of proceedings for December 24, 1967, indicates the trial judge examined the court file and found no \u201cevidence of publication\u201d or of service by the sheriff\u2019s office. If the 1967 decree was void, then it could be attacked at any time, either directly, or collaterally. Moreover, if the 1967 decree was void, then the subsequent proceedings based upon it were likewise void and the invalidity of the 1967 decree could be raised at any time subsequently. The Heckos did, in fact, challenge the 1967 decree in their petition to vacate the March 19, 1970, foreclosure decree. Thus the Heckos properly attacked both the 1967 demolition decree and the March 19, 1970, lien foreclosure decree on the grounds that they were void, that is, that the court did not acquire jurisdiction. This they could do in the form of a petition under section 72(7). Ill. Rev. Stat. 1969, ch. 110, par. 72(7).\nMoreover, if the Heckos\u2019 May 24, 1971, \u201cpetition\u201d is treated as brought under section 72 for equitable relief, it is to be considered as addressed to the validity of the decree of foreclosure entered on March 19, 1970. As amended, it does meet the traditional test for relief under section 72. First, it was filed within 2 years. Secondly, it alleged due diligence since it alleged that the petition was brought \u201cwithin a few days\u201d of the time tire Heckos\u2019 attorney discovered the existence of the judgment in May of 1971. Finally, the petition alleged a meritorious defense when it alleged the underlying 1967 demolition decree was void and when it alleged that the affidavit in support of the notice by publication in the lien foreclosure proceeding was both defective and false.\nTherefore, whether tire petition to vacate is considered to be one asking the traditional relief of a court of equity from a default judgment, or whether tire petition is considered as one attacking the foreclosure decree for lack of jurisdiction (tire option left open by section 72(7)), the 1967 decree could have been attacked. Tire petition was timely filed and set forth an affirmative defense. Consequently, the petition under section 72 should not have been dismissed. Rather, a hearing should have been held to determine if the 1967 decree was void or not, a matter that cannot be determined on the record before us and on which we express no opinion. Additionally, the Heckos were entitled to a hearing on their contention that the City had filed a false affidavit in the proceedings to foreclose the demolition lien. As to the requirements for testing such an affidavit see Graham v. O\u2019Connor, 350 Ill. 36, 40, 182 N.E. 764, and Schwartz v. City of Chicago, 21 Ill.App.3d 84, 315 N.E.2d 215.\nFor the reasons set forth, the judgment of the circuit court of Cook County dismissing the Heckos\u2019 suit against the City of Chicago for wrongful demolition is reversed and the cause remanded with directions to reinstate the case on the trial call. The judgment denying relief under section 72 of the Civil Practice Act is also reversed, and that cause is remanded with directions to determine if the court had jurisdiction to enter the 1967 and 1970 decrees and, if it did not as to either proceeding, then to set aside the decree of foreclosure, and for further proceedings not inconsistent with the views expressed in this opinion.\nJudgments reversed and remanded for further proceedings.\nDOWNING, P. J., and HAYES, J., concur.\nWe do not purport to understand how the decree could have been entered before the complaint had been filed but no point has been made of this anomaly.",
        "type": "majority",
        "author": "Mr. JUSTICE STAMOS"
      }
    ],
    "attorneys": [
      "P. C. Noonan, of Park Forest, for appellant.",
      "Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan, Jerome A. Siegan, and Roseann Oliver, Assistant Corporation Counsel, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "Jerby H. Hecko et al., Plaintiffs-Appellants, v. The City of Chicago et al., Defendants-Appellees. The City of Chicago, Plaintiff-Appellee, v. Jerry H. Hecko et al., Defendants-Appellants.\n(Nos. 56498, 57912 cons.;\nFirst District (2nd Division)\nJanuary 14, 1975.\nP. C. Noonan, of Park Forest, for appellant.\nRichard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan, Jerome A. Siegan, and Roseann Oliver, Assistant Corporation Counsel, of counsel), for appellees."
  },
  "file_name": "0572-01",
  "first_page_order": 596,
  "last_page_order": 604
}