{ "id": 5537464, "name": "EVAN J. MORRIS et al., Plaintiffs-Appellees, v. ANTHONY R. MARTIN-TRIGONA, Defendant-Appellant", "name_abbreviation": "Morris v. Martin-Trigona", "decision_date": "1980-10-03", "docket_number": "No. 15919", "first_page": "85", "last_page": "92", "citations": [ { "type": "official", "cite": "89 Ill. App. 3d 85" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "230 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 2d 340", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551154 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0340-01" ] }, { "cite": "330 U.S. 258", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353858 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/330/0258-01" ] }, { "cite": "284 N.E.2d 924", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "5 Ill. App. 3d 665", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2528459, 2528597 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0665-01", "/ill-app-3d/5/0665-02" ] }, { "cite": "302 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2684815 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0564-01" ] }, { "cite": "323 N.E.2d 129", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706245, 2702463 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0100-01", "/ill-app-3d/25/0100-02" ] }, { "cite": "274 Ill. App. 296", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3327732 ], "opinion_index": 0, "case_paths": [ "/ill-app/274/0296-01" ] }, { "cite": "194 N.E. 512", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "359 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5276978 ], "opinion_index": 0, "case_paths": [ "/ill/359/0228-01" ] } ], "analysis": { "cardinality": 705, "char_count": 16491, "ocr_confidence": 0.897, "pagerank": { "raw": 1.0559018215087876e-07, "percentile": 0.5553234956941505 }, "sha256": "3f7f3ac6f3c0ec126f9ca72e17be43dd76132a36a3e300fc85aa9f620d0b5e24", "simhash": "1:271bf4ac3a404cff", "word_count": 2760 }, "last_updated": "2023-07-14T20:16:28.821099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EVAN J. MORRIS et al., Plaintiffs-Appellees, v. ANTHONY R. MARTIN-TRIGONA, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE CRAVEN\ndelivered the opinion of the court:\nDefendant appeals the dismissal of his section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72). We must, on the third appeal of this case, reverse a portion of that order and remand this cause to the trial court. Because of the issues involved, it is necessary to set forth in some detail the torturous procedural history of this cause.\nPlaintiffs and defendant entered into a contract for deed concerning certain property in Champaign County. Defendant failed to keep the property insured and missed several payments and was given notice by the plaintiffs that he was in default. Plaintiffs then filed suit for possession and for damages under the Forcible Entry and Detainer Act. The action was given an \u201cS\u201d designation by the clerk.\nDefendant filed a petition for removal to the Federal District Court, a by now familiar course of conduct in each case wherein Martin-Trigona is a party. That petition was denied and the Federal Court remanded the cause to the State court. No response from the defendant having been filed and no appearance having been made, the trial court entered a default judgment in favor of plaintiffs.\nFollowing the entry of the default judgment, the cause was set for a hearing on the question of damages before Judge Sherrick, who had not previously heard any part of this suit. Defendant appeared at that hearing and filed a motion for change of judge. It is noteworthy that the motion as prepared did not name Judge Sherrick until defendant wrote in his name\nduring argument on the motion. That motion was denied, and defendant left the hearing, maintaining that the court did not have jurisdiction. Judgment for possession and damages of $5,085 for defendant\u2019s wrongful continuation of possession was then entered. A notice of appeal from this judgment was filed and was docketed as No. 14652. That appeal was dismissed for want of prosecution.\nPlaintiffs thereafter filed a citation to discover assets. Defendant appeared at the hearing on the citation and attempted to file a section 72 petition. The trial court refused to hold an immediate hearing on the petition and defendant filed a notice of appeal. Defendant then refused to answer questions concerning his assets propounded by plaintiffs, claiming a fifth amendment right against self-incrimination. He was then held in contempt of court. The notice of appeal filed during the hearing was docketed as No. 15035 and was dismissed by this court for want of a final order.\nDefendant then refiled his section 72 petition. Plaintiffs moved to strike the petition and that motion was allowed. This appeal is from that order and, while we reverse, we do not find it necessary to address each of defendant\u2019s claims raised in the petition.\nThe proceeding here may be divided into three portions: (1) the granting of a default judgment, (2) the hearing on damages which resulted in an order for possession and a judgment for money, and (3) the contempt order. Defendant raised several issues in his section 72 petition relating to the court\u2019s jurisdiction in all instances. Contrary to defendant\u2019s assertions, the court did have jurisdiction to award damages for rent (Ill. Rev. Stat. 1979, ch. 57, par. 5). The fact that this cause was given an \u201cS\u201d number (denoting a small claim) involves the internal procedures of the Champaign County Clerk\u2019s office and did not deprive the court of jurisdiction. Likewise, the failure of the trial court to award a defendant a stay, even if error, which it was not, was not jurisdictional and consequently cannot be attacked collaterally.\nDefendant argues that the trial court had no jurisdiction to enter the default judgment because plaintiffs failed to send him notice of their intent to file suit 30 days before initiating this action. That notice is clearly required by section 3 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1975, ch. 57, par. 3). The record shows that on February 27, 1976, defendant was given a notice of default on the contract for deed. On November 23, 1976, plaintiffs sent defendant an \u201cElection by Sellers to Declare Agreement at End\u201d which included their demand for immediate possession. The complaint, to which these two notices were appended, was filed on November 24,1976.\nWe note initially that this issue was not raised in defendant\u2019s section 72 petition and appears for the first time in his brief on appeal. We address the issue here only because it goes to the question of voidness which may be raised \u201cat any time,\u201d and we conclude that the general rule includes proceedings on appeal.\nThe failure of plaintiffs to give the required notice is without a doubt a defect. (Given v. Lofton (1935), 359 Ill. 228, 194 N.E. 512.) Defendant argues that the hearing on the complaint resulting in the entry of default judgment was improperly held and that the trial court was without subject matter jurisdiction because no notice was given. (See Craft v. Calmeyer (1934), 274 Ill. App. 296.) In Craft, the court, in dicta, relied on the theory that the trial court in forcible entry and detainer was a court of limited jurisdiction to reach the conclusion that deviation from the statutory procedure deprived the court of subject matter jurisdiction. Since the adoption of the Judicial Article in 1964 and the subsequent inclusion of that article in the 1970 Constitution (Ill. Const. 1970, art. VI), that theory is no longer valid. We therefore find that the failure to give defendant the statutorily required 30-day notice, while error, did not deprive the trial court of jurisdiction. The judgment was therefore not void and could not be attacked for that reason by a section 72 petition even if included.\nUpon one issue, however, we must reverse. It is clear that a defendant is entitled to one change of judge when the judge has not yet made a ruling of substance. (Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100, 323 N.E.2d 129.) Even though default judgment had been entered \u2014 certainly a ruling of substance \u2014 Judge Sherrick, at whom the venue motion was directed, had not made any rulings. Nor had defendant made any prior motions for a change of judge in this cause. The defendant was entitled to a change of judge as a matter of right. By denying defendant\u2019s venue motion, Judge Sherrick divested himself of jurisdiction and the order granting plaintiffs\u2019 possession and damages must be reversed and remanded for a new hearing before a different judge. Little v. Newell (1973), 14 Ill. App. 3d 564,302 N.E.2d 739; Stark v. Roussey & Associates, Inc. (1972), 5 Ill. App. 3d 665, 284 N.E.2d 924.\nWe specifically do not reverse that portion of the order denying section 72 relief concerning the contempt order. Even though we find error in the underlying judgment, the contempt citation is not thereby voided. The contempt arises independently of the validity of the judgment in aid of which the citation was issued. (United States v. United Mine Workers of America (1947), 330 U.S. 258, 91 L. Ed. 884, 67 S. Ct. 677.) It is clear that regardless of the validity of the underlying order, the trial court is vested with the power to protect its authority and command respect for its own orders by use of the contempt power. The only exception to this rule is where the court does not have subject matter jurisdiction over the cause. (City of Chicago v. King (1967), 86 Ill. App. 2d 340, 230 N.E.2d 41.) As has been stated above, this is not the case here.\nWe therefore reverse and remand for a new hearing on damages and affirm both the underlying judgment and the judgment of contempt.\nAffirmed in part, reversed in part, and remanded for a new hearing.\nWEBBER, J., concurs.", "type": "majority", "author": "Mr. JUSTICE CRAVEN" }, { "text": "Mr. JUSTICE TRAPP,\nconcurring in part and dissenting in part:\nI concur in the opinion as it affirms the underlying judgment and the judgment for contempt. I dissent from the opinion insofar as it determines that the trial court erred in denying defendant\u2019s motion for substitution of judge and reverses and remands for a new determination of damages.\nSection 1 of \u201cAn Act to revise the law in relation to change of venue\u201d (Ill. Rev. Stat. 1979, ch. 110, par. 501 et seq.) provides the grounds for change of venue in a civil action. Section 3 (Ill. Rev. Stat. 1979, ch. 110, par. 503) provides that an application for a change of venue by a party or his attorney shall be by a petition which shall be verified by the affidavit of the applicant and set forth the cause of the application. Section 3 provides specifically:\n\u201cA petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case,\nO # # \u201d\nA reading of this record supports the conclusion that the trial court had indeed ruled upon a matter of substance prior to consideration of the motion for change of judge here presented and that his subsequent order denying the petition was lawful.\nThe record shows that on September 15, 1977, all circuit judges of Champaign County recused themselves from this cause. On September 20 the chief judge of the circuit entered an order assigning Judge Sherrick, a circuit judge of Coles County, to hear this case then pending in Champaign County. The clerk gave notice of allotment for hearing on October 12, 1977.\nOn October 12, 1977, when the case was called for hearing, defendant filed a notice of special and limited appearance reciting that a petition for removal had been filed in the United States District Court, and that defendant appeared \u201cfor the sole purpose of advising the Court that pending the resolution of the petition for removal, the state court lacks jurisdiction to proceed 0 e Attached to that document was a purported copy of petitioner\u2019s \u201cSECOND PETITION FOR REMOVAL\u201d to the United States District Court. Such attached copy was not verified and did not display any file stamp of that court. Also attached were photocopies of two opinions of this court concerning prior appeals.\nA \u201cMOTION FOR CHANGE OF VENUE (JUDGE)\u201d is also file-stamped October 12, 1977. Neither the motion nor the accompanying affidavit as prepared included the name of the assigned judge, but the name \u201cSherrick\u201d was scrawled in following the words \u201cchange of judge.\u201d In contrast, it is noted that the name of the assigned judge is typed into the body of the notice of special appearance filed.\nThe common law record for October 12, 1977, sets forth the appearances of the parties and relevant portions state:\n\u201cDefendant presents notice of filing special and limited appearance. Arguments heard. Defendant\u2019s special and limited appearance denied.\nDefendant files motion for change of venue. Hearing on motion. Motion denied.\u201d\nThe order of the trial judge on October 12 directed that a written order be prepared. Such order, signed and filed on October 14, recites in sum that upon the case being called for hearing defendant presents in open court the notice of filing of the special and limited appearance, together with a document entitled \u201cPETITIONER\u2019S SECOND PETITION FOR REMOVAL\u201d and in addition, defendant filed a motion for a change of venue (judge) together with an affidavit of defendant. The written orders continued:\n\u201cAnd the Court upon requesting arguments in favor of and in opposition to said motions as presented by the Defendant * * * hears the presentation as made by the said defendant * * * relating to the Petitioner\u2019s Second Petition For Removal after which said defendant \u00b0 * 0 leaves the courtroom stating that the counsel for Plaintiff * * * in his argument is referring to the merits of the case and, therefore, that the said Defendant does not wish to be present.\u201d\nThe written order of the trial court proceeds to make certain findings concerning the petition to remove the cause to the Federal court, including references to the Federal Rules of Civil Procedure, and thereafter the written judgment order turns to and considers the motion for change of venue from the judge. Both the common law record entry and the written order are consistent with the conclusion that the defendant first presented a special appearance limited to the removal petition and presented and argued with regard to such document.\nThe resolution of the matter of the special and limited appearance seems clearly to be a matter of substance, and it appears the defendant in logic and in fact considered the issue of the removal of the cause to the Federal District Court to be the threshold to further proceedings. If defendant prevailed upon such issue, the matter of the change of venue would have no present purpose.\nThis conclusion is substantiated by the report of proceedings. At the opening of the hearing the court asked defendant what documents were to be noted. Defendant responded that he had tendered the notice of special and limited appearance with a copy of the petition for removal. He continued that there was also a motion for change of judge which he declared \u201cmay be a surplus Motion because under the Appellate Court\u2019s interpretation of the law, that there can\u2019t be any proceedings until it\u2019s remanded (from the District Court).\u201d In subsequent colloquy defendant states that he is challenging the jurisdiction of the State court.\nThe trial court requested that defendant advise him of the law with regard to the petition for removal and defendant suggested that the judge review the attached appellate court\u2019s opinions which defendant deemed \u201cdispositive of the issues here.\u201d The proceedings advanced into confused colloquy in which defendant objected that plaintiff\u2019s counsel argued the merits of the case rather than the jurisdiction of the court, and that he did not wish to be heard by the court upon the merits. Defendant insisted that under the appellate decisions there was nothing presently before the court. As defendant persisted with objections and the court insisted that he wished to hear defendant\u2019s counsel, defendant advised that he did not wish to participate in the argument as it might constitute a waiver of rights under the statute for removal.\nAs the colloquy continues, defendant advised that he would leave as there was nothing more to do. When the court requested that defendant sit down, defendant announced that the petition for removal had been filed and that he would absent himself from further proceedings. In a closing phrase he mentioned the motion for change of venue from the judge. The court pointed out that the motion did not name any particular judge and hence was not adequate, to which defendant stated, \u201cI\u2019ll just fill in your name now Judge. That\u2019s no problem.\u201d The court stated \u201cNow, in order that there is no misunderstanding, I\u2019m considering first this Petition for Removal. Then, I will consider the Motion for Substitution of Judge, in that order.\u201d\nThe court directed plaintiff\u2019s counsel to proceed and defendant renewed his objection. Defendant argued, \u201cSo that in that sense he is really violating the Court\u2019s order, that we would consider first, the question of removal.\u201d\nWe find that defendant repeated in his objection to plaintiff\u2019s argument, \u201cWell Judge, the record \u2014 you issued an order that we are to determine and you are considering at this moment, the Removal Petition which has now been filed in Federal Court. #\nAfter further brief colloquy defendant absented himself from the courtroom and the matter continued in his absence.\nThis summary of a number of pages of the proceedings discloses that the parties did, in fact, as well as is shown in the common law record, first take up and determine the issue of the jurisdiction of the court as it was affected by the purported second petition for removal to the Federal District Court.\nIt thus becomes clear that both within the statute and the law as stated by the courts of review the court and the parties expressly undertook to first determine the question of the jurisdiction of the trial court, and that such question constituted a substantial issue to be determined prior to both the actual presenting of the motion for substitution of judge and the ruling upon such motion.\nFor such reason I would affirm the trial court upon all issues.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Mr. JUSTICE TRAPP," } ], "attorneys": [ "D. L. Bertelle, of Chicago, for appellant.", "Charles W. Hendrix, of Champaign, for appellees." ], "corrections": "", "head_matter": "EVAN J. MORRIS et al., Plaintiffs-Appellees, v. ANTHONY R. MARTIN-TRIGONA, Defendant-Appellant.\nFourth District\nNo. 15919\nOpinion filed October 3,1980.\nRehearing denied November 10,1980.\nD. L. Bertelle, of Chicago, for appellant.\nCharles W. Hendrix, of Champaign, for appellees." }, "file_name": "0085-01", "first_page_order": 107, "last_page_order": 114 }