{ "id": 256270, "name": "COMMUNITY BANK OF PLANO, n/k/a First National Bank of Joliet/Plano Banking Center, Plaintiff-Appellee, v. A. NORMAN OTTO et al., Special Adm'rs of the Estate of August C. Otto, Jr., Defendants-Appellants", "name_abbreviation": "Community Bank of Plano v. Otto", "decision_date": "2001-08-29", "docket_number": "No. 2 \u2014 00\u20140039", "first_page": "471", "last_page": "476", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 471" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "207 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553128 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "90" }, { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0087-01" ] }, { "cite": "186 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243909 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "192" }, { "page": "196", "parenthetical": "where no decedent's estate existed, the trial court lacked jurisdiction to adjudicate claim that should have been brought against it" }, { "page": "196" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0188-01" ] }, { "cite": "253 Ill. App. 3d 196", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5421534 ], "year": 1993, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0196-01" ] }, { "cite": "181 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821398 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "174" }, { "page": "174" }, { "page": "174-75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0169-01" ] }, { "cite": "307 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173569 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "502" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0496-01" ] }, { "cite": "269 Ill. App. 3d 392", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365837 ], "year": 1995, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0392-01" ] } ], "analysis": { "cardinality": 478, "char_count": 9619, "ocr_confidence": 0.79, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.31002637605512906 }, "sha256": "2e9a24fdcd45036d2bc895fc068d60243b105ffb2f539efd84879e4674d49458", "simhash": "1:37bf7f16f726ce49", "word_count": 1659 }, "last_updated": "2023-07-14T20:56:29.143572+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COMMUNITY BANK OF PLANO, n/k/a First National Bank of Joliet/Plano Banking Center, Plaintiff-Appellee, v. A. NORMAN OTTO et al., Special Adm\u2019rs of the Estate of August C. Otto, Jr., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nDefendants, A. Norman Otto and Allen C. Otto, appeal from the trial court\u2019s dismissal of their petition to set aside and vacate the judgment and the denial of their motion for rehearing. We vacate the trial court\u2019s judgment.\n\u20221 We first note that plaintiff, Community Bank of Plano (bank), has moved to dismiss this appeal pursuant to Supreme Court Rule 373 (134 Ill. 2d R. 373), in that defendants\u2019 notice of appeal was filed 31 days after the entry of the order from which this appeal is taken. However, the thirtieth day after the entry of the order fell on a Sunday. The notice of appeal was filed the next day. Therefore, the notice of appeal was timely filed, and we deny the bank\u2019s motion to dismiss.\n\u20222 The bank also seeks the dismissal of the appeal because defendants failed to provide in their brief a jurisdictional basis for this court to hear this appeal, as required by Supreme Court Rule 341(e)(4)(ii) (177 Ill. 2d R. 341(e)(4)(ii)) (miscited by the bank as Supreme Court Rule 341(e)(3)), and a statement regarding the standard of review for each issue, as required by Supreme Court Rule 341(e)(3) (177 Ill. 2d R. 341(e)(3)). We note that defendants have provided a statement of jurisdiction and find that it is sufficient. However, defendants have in fact failed to include any statement regarding the standard of review. Defendants similarly failed to provide a statement of the standard of review in their brief in a prior appeal arising out of this litigation. This failure to follow the supreme court rules was brought to defendants\u2019 attention. See Community Bank v. Otto, No. 2 \u2014 97\u20141298, slip order at 4 (1998) (unpublished order under Supreme Court Rule 23). We admonish defendants and their counsel that compliance with the supreme court rules is not a matter of convenience. Having had the same deficiency brought to their attention previously in this case, defendants\u2019 lack of compliance with the rules should be inexcusable. Nevertheless, defendants\u2019 brief is not so deficient as to prevent our review of the appeal. See In re Marriage of Corkey, 269 Ill. App. 3d 392, 396 (1995). Therefore, we will not dismiss the appeal.\nOn November 24, 1997, the trial court entered judgment in the amount of $313,555.53 in favor of the bank and against the estate of August C. Otto, deceased. This judgment was affirmed in No. 2 \u2014 97\u2014 1298. In December 1997, the bank filed a citation to discover assets against defendants as co-administrators of the estate of August C. Otto and as transferees of certain property that had been transferred in 1994. While the citation was ordered to issue, no service of the citation was obtained.\nIn April 1998, the bank filed a verified petition for the issuance of a citation to recover property on behalf of the estate, seeking relief pursuant to section 16 \u2014 1 of the Probate Act of 1975 (755 ILCS 5/16 \u2014 1 (West 1998)). The citation issued, and, after a hearing, the trial court entered an order on March 19, 1999, in which the court found that the 1994 property transfer had been a fraudulent conveyance. The court ordered the transfer of the property to the estate of August C. Otto and allowed the bank to levy on the property, which was subsequently sold at a sheriffs sale.\nOn June 16, 1999, defendants filed a petition pursuant to section 2 \u2014 1401 of the Civil Practice Law (735 ILCS 5/2 \u2014 1401 (West 1998)) to set aside and vacate the March 19 order. The bank filed a motion to dismiss that was granted on July 27. Defendants then filed on August 19 a motion to vacate the order dismissing their petition. The record is unclear as to what happened next; however, on September 24, the court entered an order again dismissing the section 2 \u2014 1401 motion as \u201cnot being in compliance\u201d with section 2 \u2014 1401(a) and taking under advisement \u201cthe motion to Declare the Judgment Void.\u201d On December 10, the court ruled that the judgment order was not void and denied the motion to vacate. This appeal followed.\n\u20223-6 Defendants first contend that the trial court erred in determining that the March 19 judgment was not void. A void order or judgment can be attacked at any time or in any court, in either a direct or a collateral proceeding. JoJan Corp. v. Brent, 307 Ill. App. 3d 496, 502 (1999). A judgment is void only where there is a total lack of jurisdiction in the court that entered the judgment, either as to subject matter or as to the parties. In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). To support a collateral attack, the lack of jurisdiction must appear on the face of the record. JoJan, 307 Ill. App. 3d at 505. If the record does not contain evidence that the court\u2019s action is a nullity, or if it recites jurisdictional facts that are untrue, the judgment is voidable and must be attacked directly for the purpose of establishing with other evidence the untruthfulness of the record. In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 201 (1993). A judgment is merely voidable if it is entered erroneously by a court having jurisdiction; such a judgment is not subject to collateral attack. Mitchell, 181 Ill. 2d at 174. Once a court has jurisdiction, an order will not be rendered void because of an error or impropriety in the court\u2019s determination of law, and a court may not lose jurisdiction merely because it makes a mistake in determining the facts, the law or both. Mitchell, 181 Ill. 2d at 174-75.\n\u20227 Subject matter jurisdiction is the court\u2019s power both to adjudicate the general question involved and to grant the particular relief requested. In re Estate of Gebis, 186 Ill. 2d 188, 192 (1999). Here, the bank petitioned the court, pursuant to the Probate Act, to issue a citation \u201cordering A. Norman Otto and Allen C. Otto to convey the real property *** to the Estate of August C. Otto, Deceased as Grantee.\u201d However, the mere invocation of the Probate Act is not sufficient to confer jurisdiction on the trial court. Our review of the record reveals no pleading related to the opening of a decedent\u2019s estate in August C. Otto\u2019s name, the issuance of letters testamentary or of administration for such an estate, or the admission of August C. Otto\u2019s will to probate. Indeed, the bank\u2019s petition itself alleged that \u201cno Probate of the Estate of August C. Otto has been undertaken.\u201d We are unaware of any reason whereby the Probate Act can be used as a basis for jurisdiction when no estate has been opened. See Gebis, 186 Ill. 2d at 196 (where no decedent\u2019s estate existed, the trial court lacked jurisdiction to adjudicate claim that should have been brought against it).\nThe bank argues that the June 1996 appointment of defendants as special co-administrators in the underlying case is evidence of the existence of the estate. However, a special administrator appointed pursuant to the Civil Practice Law for the purpose of defending an action is not equivalent to an administrator appointed pursuant to the Probate Act. Hannah v. Gilbert, 207 Ill. App. 3d 87, 90 (1990). Such a special administrator is empowered only to defend the action in which he is appointed; no letters of office to administer the estate issue. Hannah, 207 Ill. App. 3d at 90. While defendants were appointed as special administrators in the action in which the hank obtained judgment against August Otto, that appointment did not open a decedent\u2019s estate of August C. Otto. Defendants were not empowered to do anything beyond defending the underlying action.\nUntil a decedent\u2019s will is admitted to probate or letters of administration issue, a trial court lacks any authority to adjudicate a creditor\u2019s claim against a decedent and thus a claim cannot be filed against a decedent\u2019s estate until such an estate has been opened. Gebis, 186 Ill. 2d at 196. In fact, the trial court\u2019s only choice is to dismiss such a creditor\u2019s claim for lack of subject matter jurisdiction, and any other order by the court is void and we must vacate it. Gebis, 186 Ill. 2d at 197. Of course, the creditors of a deceased may petition the circuit court either for admission of the decedent\u2019s will to probate (755 ILCS 5/6 \u2014 2 (West 1996)) or for letters of administration (755 ILCS 5/9 \u2014 3 (West 1996)).\nAs Gebis pointed out, at first such a decision may appear unduly technical, but the consequences of a contrary result are significant. Article 18 of the Probate Act establishes detailed procedures for the adjudication of claims against a decedent\u2019s estate. Among these procedures is a schedule setting forth the priority in which claims against a decedent\u2019s estate must be paid. The failure to follow the statutory scheme set forth in the Probate Act could circumvent the priority schedule established in the Act.\nThe record shows no evidence of the existence of an estate of August C. Otto, deceased. There being no such entity, the Probate Act did not confer jurisdiction on the trial court to adjudicate the bank\u2019s petition. Therefore, the March 19, 1999, order was void and must be vacated.\nBecause of our resolution of this issue, we need not address defendants\u2019 other contentions.\nFor these reasons, the judgment of the circuit court of Kendall County is vacated.\nVacated.\nGEIGER and BYRNE, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "Louis E. Neuendorf, of Sandwich, for appellants.", "Daniel J. Kramer, of Law Offices of Daniel J. Kramer, of Yorkville, for ap-pellee." ], "corrections": "", "head_matter": "COMMUNITY BANK OF PLANO, n/k/a First National Bank of Joliet/Plano Banking Center, Plaintiff-Appellee, v. A. NORMAN OTTO et al., Special Adm\u2019rs of the Estate of August C. Otto, Jr., Defendants-Appellants.\nSecond District\nNo. 2 \u2014 00\u20140039\nOpinion filed August 29, 2001.\nLouis E. Neuendorf, of Sandwich, for appellants.\nDaniel J. Kramer, of Law Offices of Daniel J. Kramer, of Yorkville, for ap-pellee." }, "file_name": "0471-01", "first_page_order": 489, "last_page_order": 494 }