Docket Nos. 89551, 89560 cons.–Agenda 18–March 2001.

JOHN STEINBRECHER et al., Appellants, v. ROSEMARY  								STEINBRECHER, Appellee.

Opinion filed September 27, 2001.

	JUSTICE FITZGERALD delivered the opinion of the court:

	In November 1995, John Steinbrecher (John) filed suit under

the Illinois partition act (735 ILCS 5/17–101 et seq. (West 1994)) against his two siblings, Jerome and Rosemary (Rosemary)

Steinbrecher, to partition or sell three parcels of land located in

Kendall County. At the close of the partition trial, the circuit court

held that each sibling held an undivided one-third interest as tenants

in common, but that the property could not be divided “without

manifest prejudice.” The circuit court ordered public sale of the

entire property. Thereafter, the circuit court approved the offer of

the highest bidder, Moser Enterprises, Inc. (Moser); confirmed the

sale to Moser in open court; and directed that the deed be recorded

in Moser’s name. Rosemary never perfected a motion to stay

judgment and filed her notice of appeal 49 days after the circuit

court order. The appellate court determined that Rosemary’s

procedural errors did not bar her appeal. The appellate court

vacated the sale of property to Moser and remanded to the circuit

court for further proceedings. 312 Ill. App. 3d 289. We now

reverse the judgment of the appellate court.

BACKGROUND

	On January 21, 1991, Francis Steinbrecher died intestate,

survived by his three children, John, Jerome, and Rosemary. As

heirs and beneficiaries of the estate of Francis Steinbrecher, John,

Jerome, and Rosemary held title as tenants in common to three

separate land parcels situated in Kendall County, totaling 409

acres. In November 1995, John filed suit under the Illinois partition

act against Jerome and Rosemary in order to partition, or sell in the

event partitioning was infeasible, the property.

	In August 1996, pursuant to the partition act the trial court

appointed a real estate consultant as commissioner to “evaluate the feasibility of partitioning” the property.1 This commissioner surveyed the property and prepared a written

“Appraisal/Commissioner Report” for the court.

	At the partition trial in August 1997, consistent with his

report, the commissioner testified that the property was incapable

of equitable partition-in-kind between the three heirs. He stated

that the property consisted of three noncontiguous parcels with

widely varied characteristics. For example, the property contained

farmland and wooded acreage on a flood plane. Moreover, the

location and man-made obstacles such as a railroad track, a county

road, and a running creek, further prevented an equal three-way

division of the property. Neither Jerome nor Rosemary presented

evidence to the trial court to refute the commissioner’s testimony.

	After reviewing the evidence, the trial court ruled that John,

Jerome, and Rosemary each held an undivided one-third interest as

tenants in common, that the property could not be divided without

manifest prejudice, and that the property should be sold at a public

sale.

	In 1998, the exclusive listing agent approved by the court

listed the property for a price of $4.5 million. In August 1998, after

the trial court was notified by the agent of three offers to purchase,

the trial court approved the $3.5 million offer of the highest bidder,

Moser. In open court on September 24, 1998, the trial court

confirmed the sale, directed a quitclaim deed be recorded in

Moser’s name, and entered a Rule 304(a) finding (155 Ill. 2d R.

304(a)) regarding the sale to Moser. Pursuant to the sale, monies

were disbursed, including the IRS liens, marketing and advertising

fees, the mortgage, closing costs, and attorney fees.

	On September 25, 1998, Rosemary filed a pro se “Motion for Stay of Judgment Pending Appeal and Rehearing Re: Deposition”

which she noticed for hearing on October 2, 1998. On October 2,

the trial court continued the motion for hearing to October 30,

1998. The trial court then addressed Rosemary:

			“THE COURT: *** I told you a long time ago that I’m

not going to hear this thing every other day. Just because

you want to file a motion doesn’t mean I’m going to hear

it. I told you to file things once a month. We’ve set a date

for a motion sometime later in this month.

* * *

			Now, yet, you continually file motions. You continually

get the–the Clerk’s office has to bring this file down here.

The other attorney has to come in. He was here all

morning. And I’ve told you in the past I’m not going to

hear this just because you want to file a motion and notice

it up on whatever day you want to notice it up. Now, I

will hear the–everything you have, whatever it is, on the

next court date

* * *

			Now if you do this again, I’m going to start imposing

sanctions against you. We’re not going to be disrupting

everybody’s life simply because you want to file a motion,

especially when I’ve given you a date in the future.

			ROSEMARY: Your Honor, the date in the future had

nothing to do with this particular issue.

			THE COURT: What difference does that make? It’s

[sic] court date where everybody is supposed to be here, correct? Do you think I’m going to sit here and have

everybody come in here every day just because you want

to file a motion and you want to be heard on this day

because you happen to be available?

			ROSEMARY: I thought time might be of the essence,

in fairness to the parties.

			THE COURT: I doubt, in this case, time is of the

essence to anybody. As I said, do it again and I’m going to

start imposing sanctions against you. Okay?”

	On October 30, 35 days after the court’s final judgment,

Rosemary appeared for hearing on her stay of judgment motion.

Additionally, Rosemary filed and presented for hearing a new

motion, entitled “Motion to Declare Void the Sale of Property to

Moser Enterprises, Inc.” The trial court denied Rosemary’s motion

to void the sale and denied Rosemary’s motion to stay the

judgment. Rosemary never filed a motion with the appellate court

to stay the judgment.

	Despite the September 24, 1998, order granting right, title,

and interest to Moser, Rosemary refused to vacate the Kendall

County property. As a result, on October 30, 1998, Moser sought

leave to intervene for the limited purpose of “enforc[ing] its right

to possession.” This was Moser’s first appearance in the litigation.

The trial court granted Moser’s petition for leave to intervene,

granted Moser’s motion for possession, and ordered Rosemary to

vacate the property on or before November 13, 1998.

	On November 13, 49 days after Moser was granted exclusive

possession of the property, Rosemary filed a notice of appeal. John

moved to dismiss the appeal, arguing that the appellate court

lacked jurisdiction because the notice of appeal was untimely and

because the appeal was moot pursuant to the protections afforded

third-party purchasers under Illinois Supreme Court Rule 305(j)

(155 Ill. 2d R. 305(j)).

	 The appellate court held that procedural errors did not bar

Rosemary’s appeal because the threat of sanctions voiced by the

trial judge to Rosemary, a pro se litigant,2 “were confusing and likely had the effect of keeping her from filing her motion” within

the proper time period. 312 Ill. App. 3d 289, 297. By the term “her

motion” the appellate court referred to Rosemary’s October 30, 1998, “Motion to Declare Void the Sale,” which it labeled a post-

judgment motion. 312 Ill. App. 3d at 297. According to the

appellate court, the October 30 post-judgment motion served to

toll the period for appeal such that the notice of appeal filed on

November 13, 1998, was timely. 312 Ill. App. 3d at 297.

Additionally, the appellate court held that the issue was not moot

because Moser’s post-sale, post-judgment intervention on October

30, 1998, barred the application of Rule 305(j) and any protection

it afforded nonparty purchasers. 312 Ill. App. 3d at 297-98. The

appellate court then vacated the sale of the property and remanded

for further proceedings to determine, again, whether the property

could be partitioned without manifest prejudice. 312 Ill. App. 3d

at 305.

	Following entry of the appellate court judgment, Moser moved

to intervene in order to file a petition for rehearing. On April 19,

2000, the appellate court granted Moser leave to intervene but

denied its petition for rehearing. On May 24, 2000, Moser timely

filed its petition for leave to appeal to this court. On July 5, 2000,

John timely filed his petition for leave to appeal to this court. We

granted the petitions and consolidated the appeals.

ANALYSIS

	As an initial matter, John and Moser contend that the appellate

court committed reversible error because it lacked jurisdiction due

to Rosemary’s failure to file a timely notice of appeal. Rosemary

filed her notice of appeal on November 13, 1998, 49 days after the

trial court entered its final judgment. They contend that the notice

of appeal was untimely under Rule 303(a), and that her “Motion to

Declare Void the Sale” filed on October 30, 1998, did not toll the

time to file her notice of appeal because it was also untimely under

section 2–1203(a) of the Code of Civil Procedure (155 Ill. 2d R.

303(a); 735 ILCS 5/2–1203(a) (West 1998)). Moreover, they

contend that even if the motion to void was timely, it did not toll

the time to appeal because the motion was an insufficient post-

judgment motion under section 2–1203(a). Anderson v. Resource Economics Corp., 133 Ill. 2d 342 (1990) (a post-judgment motion must include a request for at least one form of relief specified in section 2–1203 and allege grounds that warrant the relief); accord Beck v. Stepp, 144 Ill. 2d 232 (1991); but see Berg v. Allied Security, Inc., 297 Ill. App. 3d 891 (1998) (holding that section 2–1203 does not require specificity despite judicial dictum stating to the contrary), vacated & appeal dismissed, 193 Ill. 2d 186 (2000).

	It is a well-established proposition that jurisdiction only arises

in the appellate court when a party timely files a notice of appeal. Berg, 193 Ill. 2d at 189; Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538 (1984); 155 Ill. 2d R. 301. Under Rule 303(a),

entitled “Appeals from Final Judgments of the Circuit Court in

Civil Cases,” a notice of appeal must be filed within 30 days after

entry of a final judgment or within 30 days after the entry of an

order disposing of the last pending post-judgment motion. 155 Ill.

2d R. 303(a). Section 2–1203(a) of the Code of Civil Procedure

addresses the timing of the post-judgment motions referred to in

Rule 303(a). According to section 2–1203(a), “[i]n all cases tried

without a jury, any party may, within 30 days after the entry of the

judgment or within any further time the court may allow within the

30 days or any extensions thereof, file a motion for a rehearing, or

a retrial, or modification of the judgment or to vacate the judgment

or for other relief.” 735 ILCS 5/2–1203(a) (West 1998).

	Whether Rosemary’s notice of appeal was timely filed is

dependent on whether her October 30, 1998, “Motion to Declare

Void the Sale to Moser Enterprises, Inc.” was a sufficient post-

judgment motion under section 2–1203(a) of the Code of Civil

Procedure, and whether Rosemary timely filed that motion. Only

a sufficient post-judgment motion, timely filed, will toll the 30-day

period for filing a notice of appeal.

	In addressing these matters, the appellate court held that

Rosemary’s October 30 motion was essentially a motion to

reconsider, which is a proper post-judgment motion under section

2–1203. As to the timeliness of the October 30 motion, the

appellate court held that under the circumstances of this case, the

motion was timely and it thus served to toll the 30-day appeal

period. The appellate court explained that, although pro se litigants are presumed to know the procedural rules, “when, as here, a trial court threatens sanctions for the filing of motions, such a litigant

must be given considerable leeway in meeting procedural

requirements.” 312 Ill. App. 3d at 297.

	We need not decide whether Rosemary’s October 30 motion

was a proper motion under section 2–1203 or whether the trial

judge’s egregious comments excuse Rosemary’s failure to file her

motion within 30 days of the court’s September 24, 1998, final

order. Rather, we agree with John and Moser that Rosemary’s

appeal is moot, pursuant to Supreme Court Rule 305(j), and that

jurisdiction is therefore lacking. 155 Ill. 2d R. 305(j).

	An appeal is moot when it involves no actual controversy or

the reviewing court cannot grant the complaining party effectual

relief. Barnard v. Michael, 392 Ill. 130, 133-34 (1945). Courts of review will generally not consider moot or abstract questions

because our jurisdiction is restricted to cases which present an

actual controversy. People ex rel. Sklodowski v. State, 162 Ill. 2d 117, 130-31 (1994); People ex rel. Partee v. Murphy, 133 Ill. 2d 402 (1990); Barnard, 392 Ill. at 133-34. If this court extends Moser Rule 305(j) protection, the issue is moot and any judgment

or reversal by a reviewing court is without effect. 

	Pursuant to Rule 305(j), John and Moser argue that when the

trial court granted right, title, and interest to a nonparty on

September 24, 1998, and Rosemary failed to perfect a stay of that

judgment, any order invalidating that judgment and sale is without

effect. Whether Rule 305(j) renders this matter moot involves the

application of law to undisputed facts. Therefore, our review is de novo. People v. Buss, 187 Ill. 2d 144, 204-05 (1999).

	Rule 305(j) protects third-party purchasers of property from

appellate reversals or modifications of judgments regarding the

property, absent a stay of judgment pending the appeal. Rule 305(j)

provides:

			“If a stay is not perfected within the time for filing the

notice of appeal, or within any extension of time granted

under subparagraph (c) of this rule, the reversal or

modification of the judgment does not affect the right,

title, or interest of any person who is not a party to the action in or to any real or personal property that is

acquired after the judgment becomes final and before the

judgment is stayed; nor shall the reversal or modification

affect any right of any person who is not a party to the

action under or by virtue of any certificate of sale issued

pursuant to a sale based on the judgment and before the

judgment is stayed.” 155 Ill. 2d R. 305(j).

Thus, Rule 305(j) requires (1) the property passed pursuant to a

final judgment; (2) the right, title and interest of the property

passed to a person or entity who is not part of the proceeding; and

(3) the litigating party failed to perfect stay of judgment within the

time allowed for filing a notice of appeal. 155 Ill. 2d R. 305(j).3

	We now apply those requirements to the instant case. First, on

September 24, 1998, the right, title and interest to the Kendall

County property passed pursuant to a final judgment. A final

judgment disposes of the rights of the parties. In re Estate of French, 166 Ill. 2d 95, 101 (1995). Particularly, the final judgment “decides the controversies between the parties on the merits and

fixes their rights, so that, if the judgment is affirmed, nothing

remains for the trial court to do but to proceed with its execution.”

In re J.N., 91 Ill. 2d 122, 127 (1982); see also Black’s Law Dictionary 847 (7th ed. 1999) (a final judgment is a “court’s last action that settles the rights of the parties and disposes of all issues

in controversy, except for the award of costs *** and enforcement

of the judgment”). Where multiple parties are involved in the

litigation, a court may enter a final judgment pursuant to Rule

304(a) (155 Ill. 2d R. 304(a)). A Rule 304(a) finding renders a

judgment final, enforceable, and appealable.

	In this case, all issues in controversy concerned the disposition

of the Kendall County property. The trial court confirmed the sale

of that property, directed a quitclaim deed be recorded, and

entered a Rule 304(a) finding regarding the sale on September 24,

1998. Under Rule 304(a), this was a “final judgment” and therefore

satisfies the first element of Rule 305(j).

	Second, the property passed to a nonparty to the litigation,

Moser. A party is defined as “[o]ne by or against whom a lawsuit

is brought.” Black’s Law Dictionary 1144 (7th ed. 1999). This

includes a person who has a stake or standing in the lawsuit and

one who is entitled to enforce rights from the final outcome of the

litigation. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492-93 (1988).

	Under Rule 305(j) a person or entity is deemed a nonparty at the time of the judgment and sale. Its language compels this conclusion. Specifically, in regard to minors or persons with

disabilities, the text provides that “[t]his paragraph applies even if

the appellant is a minor or a person under legal disability or under

duress at the time the judgment becomes final.” 155 Ill. 2d R.

305(j). Thus, the rule clearly evaluates and assigns status at the

time of the judgment and sale.

	John initiated his partition claim in November 1995. On

September 24, 1998, the trial court approved the offer, ordered the

quitclaim deed entered in Moser’s name, and entered a 304(a)

finding. When Moser acquired title pursuant to the judgment and

sale, and at all times prior, neither was it “[o]ne by or against

whom a lawsuit is brought” nor did it have a stake or standing in

the partition lawsuit. Moser was a mere purchaser of the property.

At the time of the judgment and sale, therefore, Moser was a

nonparty for purposes of Rule 305(j).

	Consistent with the appellate court’s opinion, Rosemary

contends that when Moser intervened in the circuit court on

October 30, 1998, to secure its right to possession it became a

“party” to the litigation and lost the protections afforded to

nonparty purchasers under Rule 305(j). We reject this argument

and hold that post-sale, post-judgment intervention does not bar

the application of Rule 305(j). As discussed, status attaches at the

time of the sale and judgment. Stripping the protection of Rule

305(j) because of subsequent efforts by a party to secure exclusive

possession of the property would render an absurd result. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 541 (1992) (whenever possible, this court shall avoid interpretations that

render absurd or unjust results). Such a holding would deny

recourse to parties who in good faith purchase property pursuant

to a judicial sale, but are unable to secure right to possession and

use of that property. This outcome would force parties to choose

court intervention, and lose the protection of Rule 305(j), or

engage in self-help to secure possession.

	Finally, as required under Rule 305(j), Rosemary failed to

perfect a stay of judgment in order to bar its application. A stay of

judgment is collateral to the judgment and does not affect or alter

the issues on appeal. See In re Estate of Goodlett, 225 Ill. App. 3d 581, 587 (1992). The Illinois Supreme Court rules provide clear

direction regarding stay of judgments and the recourse available in

the event a trial court denies a stay of judgment. Rule 305(d)

authorizes litigants to make a motion in the reviewing court for a

stay of judgment following denial of the same motion by the trial

court. 155 Ill. 2d R. 305(d). As noted by our appellate court, even if the motion before the trial court was denied in error, the recourse

remains unchanged, and the party must renew the motion in the

appellate court. In re Estate of Bork, 145 Ill. App. 3d 920, 930 (1986); Horvath v. Loesch, 87 Ill. App. 3d 615, 620 (1980). Rule 305 requires that a litigant must “show that application to the trial

court is not practical, or that the trial court has denied an

application or has failed to afford the relief that the applicant

requested.” 155 Ill. 2d R. 305(d). Moreover, under Rule 305(j), a

stay must be “perfected within the time for filing notice of appeal.”

155 Ill. 2d R. 305(j).

	On October 2, 1998, Rosemary filed a “Motion for Stay of

Judgment Pending Appeal and Rehearing Re: Deposition.” This

motion was denied by the trial court on October 30, 1998.

Contrary to the requirement in Rule 305(j), Rosemary never

renewed her motion to stay in the reviewing court.4 Therefore, under Rule 305(j), Moser’s rights in the Kendall County property

are protected and the relief Rosemary sought–a judgment voiding

the sale to Moser–cannot be granted. Rather, her appeal is moot.

	Rosemary’s pro se status does not alter this result. Pro se litigants are presumed to have full knowledge of applicable court rules and procedures, including procedural deadlines with respect

to filing motions. See Domenella v. Domenella, 159 Ill. App. 3d 862, 868 (1987) (construing Rule 303(a), holding that pro se defendants must comply with the same rules of procedure as would

be required of litigants represented by an attorney). Moreover,

despite Rosemary’s pro se status, the record does not indicate that she was ignorant of court rules and procedures. In fact, the record

shows that Rosemary litigated this matter, including the filing of

motions, responses, and court appearances, for several years prior

to the trial court’s final judgment. Rule 305(d) clearly explained her

recourse following the dismissal of her motion to stay in the trial

court. This court cannot excuse her failure to follow procedure in

order to bar the application of Rule 305(j).

	Public policy of this state supports our conclusion. Illinois law

protects the integrity and finality of property sales, including

judicial sales. Dixon v. City National Bank, 81 Ill. 2d 429, 433 (1980); Checkley & Co. v. Citizens National Bank, 43 Ill. 2d 347, 350 (1969); Blancett v. Taylor, 6 Ill. 2d 434, 438 (1955); Shultz v. Milburn, 366 Ill. 400, 405 (1937); Levy v. Broadway-Carmen Building Corp., 366 Ill. 279, 282-83 (1937); Smith v. Herdlicka, 323 Ill. 585, 592-93 (1926); Crist v. McCoy, 287 Ill. 641, 647 (1919); Osmond v. Evans, 269 Ill. 278, 284 (1915); Conover v. Musgrave, 68 Ill. 58, 62 (1873). Indeed, it extends this protection to purchasers who without notice at the time of the purchase buy

in good faith. This finality and permanence is relied on by both

purchasers and others in connection with the purchase of the

property, including financial institutions, title insurers, realtors, and

tenants. Absent this policy, no person would purchase real property

involved in a judicial proceeding, if afterwards he incurred the

hazard of losing the property due to facts unknown to him at the

time of the sale. A party may avoid the harshness of this rule by

complying with the procedural mechanisms available, such as a

motion to stay enforcement of the judgment and sale.

	The dissent suggests that this court ignore the plain language

of Rule 305(j) and strong public policy favoring the finality and

permanence of judicial sales to address alleged procedural

irregularities occurring during the sale. This opinion declines to address or outline those irregularities because they are secondary

to Rule 305(j).

	The dissent maintains that the trial court lacked authority to order the sale because it failed to comply with the Act, and that this

rendered the judgment “void.” According to the dissent, failure to

follow the Act is fatal to the circuit court’s jurisdiction. The Act,

the dissent argues, gives the circuit court the “inherent authority”to

adjudicate the controversy and, therefore, failure to follow

procedure under the Act divests the court of jurisdiction and

renders the order “void.” See slip op. at 26-28 (Freeman, J.,

dissenting), citing In re M.M., 156 Ill. 2d 53 (1993); People v. Wade, 116 Ill. 2d 1 (1987); Peck v. Peck, 16 Ill. 2d 268 (1959); Armstrong v. Obucino, 300 Ill. 140 (1921); Woodward v. Ruel, 355 Ill. 163 (1933); Maloney v. Dewey, 127 Ill. 395 (1889). According to the dissent, if the judgment is “void” Rule 305(j)

would not apply.

	The dissent mistakenly relies upon a rule of law not applicable

to the present circumstances. The “inherent authority” requirement

existed before reform to the judicial system in 1964. Effective

January 1, 1964, the General Assembly amended article VI and

replaced limited jurisdiction: “Circuit Court[s] shall have unlimited

original jurisdiction of all justiciable matters.” Ill. Const. 1870, art.

VI, §9 (amended 1964); accord Ill. Const. 1970, art VI, § 9

(“Circuit Courts shall have original jurisdiction of all justiciable

matters except when the Supreme Court has original and exclusive

jurisdiction”). This amendment created a single integrated trial

court vested with jurisdiction to adjudicate all controversies.

Zamarron v. Pucinski, 282 Ill. App. 3d 354, 360 (1996). Thus, the “inherent power” requirement applies to courts of limited

jurisdiction and administrative agencies. As we noted in City of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 112 (1976):

			“We believe the jurisdictional rule applicable to the

Commission is analogous to that governing the courts of limited jurisdiction and powers formerly existing in our pre-1964 judicial system. In the context of cases involving the validity of orders or judgments of those courts, this court has said: ‘A judgment, order or decree entered by a

court which lacks jurisdiction of the parties or of the

subject matter or which lacks the inherent power to make

or enter the particular order involved, is void ***.’ ”

(Emphases added and omitted.)

	An administrative agency, like the pre-1964 circuit courts, is

powerless to act unless statutory authority exists. City of Chicago, 65 Ill. 2d at 112. An administrative agency is a statutory creature

with no general or common law power. City of Chicago, 65 Ill. 2d at 112-12. Conversely, a circuit court is a court of general

jurisdiction, which need not look to the statute for its jurisdictional

authority.

	Importantly, the dissent overlooks our recent discussion

explaining the distinction between “void” and “voidable” judgments. In Mitchell we stated that “[t]he question whether a judgment is void or voidable depends on whether the court

entering the challenged order possessed jurisdiction over the

parties and the subject matter. [Citation.] If jurisdiction is lacking,

any subsequent judgment of the court is rendered void ***. ” In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998), quoting People v. Davis, 156 Ill. 2d 149, 155-56 (1993).

	Significantly, the dissent does not dispute that the trial court in the present case had both subject matter jurisdiction and

personal jurisdiction over the parties. For this reason, the judgment

is not “void.” This is true even if we were to assume that the trial

court failed to strictly follow the provisions of the Act.

	In Mitchell, a wife argued that the settlement agreement was “void” because the trial judge specified child support payments as

a percentage rather than a dollar amount, and so failed to comply

with procedures set forth in the Illinois Marriage and Dissolution

of Marriage Act. In re Marriage of Mitchell, 181 Ill. 2d at 171-73. We agreed that the trial judge failed to follow the precise terms of

the Act. However, we reversed the order of the appellate court

finding the judgment “void”:

			“In exercising this jurisdiction, however, the trial court

judge entered a judgment that was contrary to the statute. *** The error in judgment, however, is not enough to

divest the court of jurisdiction to enter the order. The

judge had jurisdiction of the parties and subject matter,

and, although the judgment was erroneous, the judge had

authority to enter the child support order.” In re Marriage of Mitchell, 181 Ill. 2d at 175. 

Clearly, under this holding, even if the trial court failed to follow the precise terms of the Act or entered a judgment in error, the

resulting judgment is not “void.”

	Quoting a more recent decision, People v. Davis, the dissent asserts that failure to comply with a statute is tantamount to a

jurisdictional defect and renders the judgment “void.” Slip op. at 26

(Freeman, J., dissenting), quoting Davis, 156 Ill. 2d at 156 (“the power [conferred by the statute] to render the particular judgment

or sentence is as important an element of jurisdiction as its personal

jurisdiction and subject matter jurisdiction”). Initially, we observe

that Davis discusses jurisdiction “in the context of criminal proceedings.” Davis, 156 Ill. 2d at 156. Criminal proceedings that involve the power to render judgments or sentences address a

separate set of concerns not at issue in the present matter.

Nevertheless, Davis does not hold that failure to comply with a statute robs a court of jurisdiction. Instead, we held that,

“[w]hether a judgment is void or voidable presents a question of

jurisdiction.” Davis, 156 Ill. 2d at 155. Yet, jurisdiction is not affected by an incorrect judgment: “jurisdiction or power to render

a particular judgment does not mean that the judgment rendered

must be the one that should have been rendered, for the power to

decide carries with it the power to decide wrong as well as to

decide right.” Davis, 156 Ill. 2d at 156. For this reason, this court held that although the erroneous judgment was “voidable,” the

error in sentencing under the statute did not divest jurisdiction.

Davis, 156 Ill. 2d at 157-58.

	Plainly, the judgment of the circuit court is not “void” and the

provisions of Rule 305(j) apply. On September 24, 1998, when the

trial court confirmed the sale of property to Moser and directed a

quitclaim deed be recorded in its name, Moser was a nonparty to

the action between John, Jerome, and Rosemary. Moreover, the property passed pursuant to a final judgment in a circuit court with

jurisdiction. Rosemary failed to perfect a stay of that judgment.

Thus, according to Rule 305(j) there was no longer any justiciable

issue for which an appellate court could grant relief. As noted

earlier, the power of appellate review is confined to the

“consideration of actual controversies, cases in which the judgment

can be given effect.” Barnard v. Michael, 392 Ill. 130, 133-34 (1945).

	For the foregoing reasons, we find it unnecessary to address

the remaining contentions on the merits. The judgment of the

appellate court is reversed and the judgment of the circuit court is

affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

	JUSTICE GARMAN, specially concurring:

	I agree with the majority that Rule 305(j) renders Rosemary’s

appeal moot. I write separately because I cannot join the majority’s

discussion regarding void judgments. While I agree that a judgment

is void if the court entering the order lacks subject matter or

personal jurisdiction–issues not in dispute in this case–a judgment

may also be attacked as void when the court exceeds its authority to enter the particular order involved. See People v. Madej, 193 Ill. 2d 395, 401 (2000); City of Chicago v. Roman, 184 Ill. 2d 504, 510 (1998); In re Estate of Steinfeld, 158 Ill. 2d 1, 12 (1994); People v. Davis, 156 Ill. 2d 149, 156 (1993); People v. Wade, 116 Ill. 2d 1, 5 (1987).

	Rosemary contends that the circuit court’s judgment is void

under this third basis. For Moser to be protected as a third-party

purchaser under Rule 305(j), the property in question must have

passed pursuant to a final judgment. If Rosemary is correct that the

circuit court’s judgment is void, the judgment may be collaterally

attacked at any time; consequently, it is not a final judgment and

Rule 305(j) does not apply. See Roman, 184 Ill. 2d at 510 (a void judgment may be attacked at any time, either directly or

collaterally). 

	The majority cites In re Marriage of Mitchell, 181 Ill. 2d 169 (1998), for the proposition that a judgment is void only when the

court entering the order lacks subject matter or personal

jurisdiction. Slip op. at 14-16. In Mitchell, the circuit court incorporated the parties’ settlement agreement into its judgment

for dissolution of marriage. In the agreement, the parties specified

child support payments as a percentage of net income rather than

a dollar amount. Mitchell, 181 Ill. 2d at 171. This court determined that the Illinois Marriage and Dissolution of Marriage Act (750

ILCS 5/505(a)(5) (West 1994)), at that time, required the final

order for child support payments to express the support level solely in dollar amounts. Mitchell, 181 Ill. 2d at 173-74.

	In determining whether the circuit court’s order was void, we

stated that whether a judgment is void or voidable “depends on

whether the court entering the challenged order possessed

jurisdiction over the parties and the subject matter.” Mitchell, 181 Ill. 2d at 174, citing Davis, 156 Ill. 2d at 155. However, we further concluded that: 

		“the trial court’s original judgment of dissolution allowing

child support *** to be expressed as a percentage of net

income with fixed dollar limitations was an erroneous

judgment. The error in the judgment, however, is not enough to divest the court of jurisdiction to enter the order. The judge had jurisdiction of the parties and the subject matter,

and, although the judgment was erroneous, the judge had authority to enter the child support order.” (Emphasis added.) Mitchell, 181 Ill. 2d at 175.  

Thus, as long as the court has subject matter and personal

jurisdiction, and has the authority to enter the order, that judgment may not be collaterally attacked as void. 

	In addition, Mitchell favorably cites Davis, in which this court noted that “the power to render the particular judgment or sentence is as important an element of jurisdiction as is personal

jurisdiction and subject matter jurisdiction. Without such power the

judgment or sentence is void.” Davis, 156 Ill. 2d at 156.

	This rule has long been recognized by this court. In Maloney v. Dewey, 127 Ill. 395 (1889), this court stated:

		“The general rule is, that where it is once made to appear

that a court has jurisdiction, both of the subject matter and

of the parties, the judgment or decree which it pronounces

must be held conclusive and binding upon the parties

thereto and their privies, notwithstanding the court may

have proceeded irregularly, or erred in its application of

the law in the case before it. [Citation.] There are cases which seem to be exceptional to this rule, but which, perhaps, are not, when rightly considered, where the court, although having

jurisdiction of the person, and jurisdiction to adjudicate, when

properly brought before it, upon the subject -matter, renders a

judgment not authorized by law in that class of cases, under any

possible proofs,–as, for instance, in a common law case; a

judgment without the verdict of a jury, there appearing to have

been no waiver by the parties in interest of the right to have a jury;

a judgment punishing a party by imprisonment in the penitentiary,

under an indictment for a riot, and a verdict of guilty thereunder.

In such cases, it may, perhaps, in a technical sense, accurately

enough, be said that the court has no jurisdiction of the subject

matter of the particular judgment. But whether these cases fall

strictly within the general rule, or form exceptions to it, can be of but little importance, in a practical point of view, so long as the

grounds on which they rest are understood and kept in mind. They

are not instances of mere misapplication of law to particular facts,

or erroneous interpretation of rules in particular cases, but they are

attempts to exercise an authority which has no existence, in the

particular case, under any possible state of proofs.” Maloney, 127 Ill. at 402-03. 

See also Miller v. Rowan, 251 Ill. 344, 365-68 (1911). 

	Further, this court has issued decisions subsequent to Mitchell in which we have recognized a third basis for attacking a judgment

as void. See Madej, 193 Ill. 2d at 401; Roman, 184 Ill. 2d at 510 (1998).

	A court’s order will be voided on this third basis only in rare

circumstances. For example, in People v. Arna, 168 Ill. 2d 107 (1995), the defendant was convicted on two counts of attempted

first degree murder and received concurrent terms of 30 and 45

years’ imprisonment. The appellate court concluded that

consecutive sentences were mandatory under section 5--–8--–4 of the

Unified Code of Corrections (730 ILCS 5/5--–8--–4(a) (West 1992))

and remanded to the circuit court for imposition of appropriate

sentences. This court affirmed and held the circuit court’s order void because it imposed a sentence not permitted by statute. Arna, 168 Ill. 2d at 112-13. See also Roman, 184 Ill. 2d at 510 (a circuit court exceeds its authority if it orders a lesser sentence than

that provided by statute); People v. Wade, 116 Ill. 2d 1, 6 (1987); People v. Caban, 318 Ill. App. 3d 1082, 1090 (2001).

	In In re M.M., 156 Ill. 2d 53 (1993), a consolidated appeal, circuit courts terminated parental rights and appointed guardians

with the power to consent to adoption. Two circuit courts placed conditions on the guardian’s power to consent while one

court refused to do so, citing lack of authority. On review, we

noted that the court’s authority to appoint a guardian to consent to

adoption derives exclusively from statute. M.M., 156 Ill. 2d at 63- 64. The legislature creates a “justiciable matter” when it enacts a comprehensive statutory scheme thereby providing circuit

courts with the power to act under the statute. The circuit court’s

authority, however, may be limited by the legislature. M.M., 156 Ill. 2d at 65-66. With those principles in mind, we stated:

		“Section 2--–29 of the Juvenile Court Act, which pertains to

the termination of parental rights and the empowerment of

a guardian to consent to adoption, is part of a

comprehensive statutory scheme designed to facilitate the

creation of a parent-child relationship between strangers,

pursuant to the Adoption Act. The scope and application

of the Juvenile Court Act are defined solely by the

legislature. [Citation.] In particular, the juvenile court’s

authority to empower a guardian to consent to adoption

was created by the legislature, and the court’s authority with

respect to that empowerment is defined by the language of

the Juvenile Court Act. The Juvenile Court Act makes no

provision for the circuit court to limit, restrict or, in any

way, condition that guardian’s power. For these reasons,

we hold that the juvenile court exceeded its statutory

authority.” M.M., 156 Ill. 2d at 66. 

 	Finally, in Doherty v. Caisley, 104 Ill. 2d 72 (1984), this court held void an order of the circuit court of Livingston County

appointing the public defender of Cook County to represent two inmates

who were imprisoned in Livingston County in a civil

action. While the Public Defender Act does not preclude

appointment of the public defender in civil matters relating

to the conditions of an inmate’s confinement, that act does

not provide for appointment of another county’s public

defender unless that county adjoins and is located within

the same judicial circuit as the appointing county. Thus,

the court’s order exceeded its authority under the act.

Doherty, 104 Ill. 2d at 78-80.  

	In the above-cited cases, the circuit courts exceeded the

authority provided to them by statute; thus, we held the orders

void. The case before us today presents a different situation.

Rosemary contends that the circuit court failed to follow the

procedural requirements of the partition act (Act) (735 ILCS

5/17–101 et seq. (West 1994)). She alleges, inter alia, that (1) the circuit court appointed a commissioner to partition the property

without first ascertaining the rights, titles, and interests of the

parties to the action (735 ILCS 5/17–105, 17–106 (West 1994)); (2) the circuit court failed to order the commissioner to take an oath to fairly and impartially partition the property (735 ILCS

5/15–107 (West 1994)); (3) the commissioner failed to report that

the property could not be divided without manifest prejudice to the

owners (735 ILCS 5/17–116 (West 1994)); and (4) the circuit

court failed to hold a public sale (735 ILCS 5/17–116 (West

1994)).

	These allegations do not indicate that the circuit court

attempted to exercise authority beyond that provided to it by the

statute. Instead, they indicate only that the court may have failed

to fully comply with the procedures under the Act and the court’s

judgment may have been entered in error. Although this may

constitute reversible error that can be attacked on appeal, it is not sufficient

to render the judgment void. See Mitchell, 181 Ill. 2d at 174 (an error or impropriety in the court’s determination of the law renders

an order voidable rather than void); Davis, 156 Ill. 2d at 156. Thus, because the order of the circuit court is a final order and the

requirements of Rule 305(j) have been satisfied, I fully agree with

the result reached by the majority. 

	JUSTICE FREEMAN, dissenting:

	Today, the majority extends the protection of our Rule 305(j)

(155 Ill. 2d R. 305(j)) to a sale ordered by the circuit court in a

partition action brought by plaintiff, John Steinbrecher, against

defendants, Rosemary C. Steinbrecher and Jerome Steinbrecher.

The majority does so without addressing completely the concerns

raised by Rosemary regarding the authority of the circuit court to

order the sale. The majority does so without due concern that

defendants have been deprived of their property under

circumstances which, at best, evince a forced sale of the property,

and, at worst, suggest that the sale was fraudulent. Indeed, the

majority asserts that a fraudulent sale merits the protection of our

Rule 305(j). Further, in its haste to extend Rule 305(j) protection

to this sale, the majority overrules long settled precedent regarding

the elements of jurisdiction, and the equally settled precedent that

this court will not countenance fraud. Because I believe that this

court has a responsibility to examine matters of jurisdiction, and an

affirmative duty to refrain from condoning fraud, I respectfully

dissent.

FACTUAL BACKGROUND

	The facts as stated in the majority opinion require elaboration.

In the complaint for partition filed on November 28, 1995, plaintiff

represented that he and defendants, the heirs and beneficiaries of

the estate of Francis J. Steinbrecher, held title to the property as

tenants in common. Plaintiff named as additional defendants

Hinsdale Nurseries, Inc., C.D.’s Trees Service, and David

Mukelson, tenants in possession of certain portions of the property,

and Farm Credit Services of Northern Illinois, the holder of a

mortgage on a portion of the property. Plaintiff did not name the

estate as a defendant even though the estate only released its

interest in the property on January 31, 1997.

	On April 26, 1996, plaintiff requested that the circuit court

appoint a commissioner to assess the feasibility of a partition. On

May 5, 1996, the court appointed Chicago Title & Trust Company,

as a single commissioner, to partition the property. Chicago Title

declined the appointment and, eventually, Michael R. Crowley was

appointed as a substitute commissioner. Prior to the appointment

of Crowley as substitute commissioner, the court did not ascertain

and declare the rights, titles and interest of all the parties in the

action, nor did it enter judgment of partition according to the rights

of the parties. Further, Crowley did not take and subscribe an oath

that he would fairly and impartially partition the property according

to the rights and interests of the parties as declared by judgment of

the court.

	On March 11, 1997, Crowley submitted an

“Appraisal/Commissioner’s Report” to the court. In the report,

Crowley valued the property, consisting of three parcels of land

with a total of 409 acres, at $4,500,000. Crowley noted that, if the

three parcels were sold individually, the value of the property

would be $4,859,000. The values ascribed were as of August 30,

1996.

	For purposes of partition, Crowley divided the three parcels

into five segments. Crowley then stated:

			“One of the purposes of this analysis is to recommend

to the client an equitable distribution of the various segments and parcels of the subject property among three

parties. The appraiser considered various permutations of

the five various segments, with individual values of

$1,595,000; $1,608,000; $1,008,000; $426,000; and

$222,000.

			None of the combinations of these five segments

resulted in three relatively equal units. The closest

combination to this target was: the South Segment of

Parcel #1 at $1,595,000, the North Segment of Parcel #1

at $1,608,000, leaving all of Parcel #2 at $1,434,000, and

all of Parcel #3 at $222,000, for a total of $1,656,000 as

the third unit.

			While the first and second combinations resulted in

relatively similar values, the third combination was

substantially greater. And therefore, the appraiser, acting

as the court appointed commissioner, was unable to

recommend an equitable distribution of these assets among

three parties unless other compensation was provided to the first two combinations and/or some concession was

applied to the third.”

	At a bench trial in August 1997, Crowley testified that the

three parcels were not contiguous. Parcel 1 was located

approximately one mile from parcels 2 and 3. If the three parcels

were sold as a unit, the property would be on the market for a

longer period of time. Additionally, a buyer would likely discount

the price paid for the property as a whole. Again, Crowley noted

that the appraised value of the property as a whole was $359,000

less than the appraised value of the three parcels.

	Crowley testified that in attempting to partition the land, he

divided parcels 1 and 2 into four segments. He believed that each

parcel should be so divided because the parcels were bisected by

a road. Adding parcel 3 to parcels 1 and 2, he obtained five

segments that he attempted to partition equally. In his opinion, an

equitable distribution or partition of the property in kind was not

feasible unless some concession was made for the financial

inequality between the three parcels as proposed for partition. Crowley did not consider further subdividing the 409 acres to

arrive at a more equal partition of the property.

	In a letter to all parties dated October 1, 1997, the court stated

that the property could not be divided amongst the three heirs. The

court ordered a public sale of the property, with the terms and

notice of sale to be decided at a later date. Subsequently, in an

order dated October 28, 1997, the court found that the three heirs

were the owners of the property, each holding interests of an

undivided one-third, as tenants in common. Further, the court

found that the property could not be divided without manifest

prejudice to the owners. The court ordered that the entire property

be sold at public sale on terms agreed to between the parties or

further ordered by the court. The court denied Rosemary’s motion

for a stay of judgment pending appeal, and set the appeal bond at

$3 million.

	Upon motion of plaintiff, the court approved a contract for the

real estate firm of Dolan and Murphy to sell the property.

According to the contract, Dolan and Murphy had the exclusive

right to sell the property for the period beginning January 9, 1998,

and ending April 7, 1998. The contract was not renewed in April,

1998. However, the court allowed Dolan and Murphy to continue

marketing the property. On July 16, 1998, Dolan and Murphy

forwarded to the clerk of the circuit court a contract submitted by

Inland Real Estate Development Corporation for the purchase of

the property. The purchase price proposed by Inland was $3.5

million. On July 28, 1998, Dolan and Murphy forwarded to the

clerk of the circuit court a contract submitted by Robert Hamman

to purchase the property for $3,050,000.

	At a hearing on July 30, 1998, plaintiff requested that the

court approve one of the contracts submitted by Dolan and

Murphy. Jerome objected to approval of the contracts, and the

court continued the hearing to August 19, 1998. The night before

the continued hearing, Dolan and Murphy mailed to the clerk of the

circuit court a contract submitted by Moser Enterprises Inc., for

the purchase of the property. The contract listed a purchase price

of $3,550,000, $50,000 more than the purchase price proposed by

Inland. At the hearing on August 19, 1998, plaintiff tendered copies of the Moser contract to the judge, and defendants. Over

defendants’ objections, the court approved the Moser contract.

Subsequently, the court denied Rosemary’s motion for rehearing.

	On September 4, 1998, Inland filed a petition for leave to

intervene and a motion to reconsider the order of August 19, 1998.

Initially, Inland noted that its contract to purchase the property was

a matter of record in the proceeding and was file stamped by the

clerk of the court on July 20, 1998. Moser’s contract to purchase

the property was file stamped on August 19, 1998. Inland also

noted that Dolan and Murphy did not advise Inland that Moser had

submitted a contract to purchase the property. To the contrary,

Dolan and Murphy advised Inland that the Inland contract would

be approved by the court at the hearing on August 19, 1998.

Relying on this representation, Inland did not attend the hearing.

	Inland suggested that the court allow the parties to submit

additional sealed offers to purchase the property. Inland

represented to the court that it would make another offer, on terms

comparable to Moser’s offer, with a higher purchase price. Inland

believed that fundamental fairness to the buyers and to the heirs

supported reopening the bids. At a hearing on September 24, 1998,

plaintiff’s counsel admitted telling Inland that Inland’s offer to

purchase the property was the highest offer received. He also told

Inland that if the court were to approve one of the offers it would

be the one Inland submitted. He testified, however, that Dolan and

Murphy received Moser’s offer to purchase the property the night

before the hearing. The circuit court denied Inland’s petition for

leave to intervene and confirmed the sale to Moser.

ANALYSIS

A. Court’s Statutory Authority

	In the circuit court proceedings, as on appeal, Rosemary

maintained that the circuit court’s judgment, and the sale pursuant

thereto, were void because the circuit court failed to comply with

the Partition Act in several aspects. Since the circuit court derived

its authority to sell the property from the Act, Rosemary argued that the court’s failure to follow the dictates of the Act was

jurisdictional.

	The majority does not detail the aspects in which the circuit

court failed to comply with the Act nor does it consider whether

the circuit court exceeded its authority by failing to comply with

any particular provision of the Act. I will outline the four

allegations I find most troubling.

	First, Rosemary alleged that the circuit court appointed a

commissioner to partition the property without first ascertaining

the rights, titles and interest of all the parties to the action. Section

17–105 of the Act provides:

			“Judgment. The court shall ascertain and declare the

rights, titles and interest of all the parties in such action,

the plaintiffs as well as the defendants, and shall enter

judgment according to the rights of the parties.” 735 ILCS

5/17–105 (West 1996).

Section 17–108 of the Act provides:

			“Duty of Commissioners. The commissioners shall enter

upon the premises and, if the same are susceptible of

division without manifest prejudice to the rights of the

parties, they shall make partition thereof, allotting the

several shares to the respective parties, quality and

quantity relatively considered, according to their

respective rights and interests as adjudged by the court

***. If the premises are not susceptible of division without

manifest prejudice to the parties in interest, the

commissioners shall value each piece or parcel separately.”

735 ILCS 5/17–108 (West 1998).

Thus, the circuit court must declare the rights of the parties and

enter a judgment of partition according to those rights before it

appoints commissioners to partition the premises. Indeed, the

commissioners are not able to partition the premises without

direction from the court regarding the rights and interest of the

parties. Without such direction, the commissioners simply do not

know the identities of the owners and what portion of the land each

owner is entitled to.

	The circuit court appointed Crowley substitute commissioner

on August 30, 1996. Crowley submitted his report to the court on

March 11, 1997. Subsequently, in its order of October 28, 1997,

the court found that the three heirs were the owners of the

property, holding interest of an undivided one-third each, as

tenants in common. It thus appears that the court did not comply

with the requirements of the Act.

	Second, Rosemary alleged the circuit court failed to require

that Crowley take an oath, as commissioner, to fairly and

impartially partition the property. Section 17–107 of the Act

provides:

			“Oath of Commissioners. Each commissioner shall take

and subscribe an oath or affirmation fairly and impartially

to make partition of the premises, according to the rights

and interests of the parties, as declared by the judgment of

the court, if the same can be done consistently with the

interests of the parties; or, if the same cannot be so divided

without manifest prejudice to the parties in interest, that

they will fairly and impartially appraise the value of each

piece or parcel of the premises sought to be divided, and

make a true report to the court.” 735 ILCS 5/17–107

(West 1996).

	In Tibbs v. Allen, 27 Ill. 119 (1862), this court noted that the commissioners appointed by the circuit court in the partition action

did not take the oath prescribed by statute. “They were not sworn

to make partition, ‘in accordance with the judgment of the court as

to the rights and interests of the parties,’ but only sworn to divide

the land according to their own opinions of those rights and

interests, without regard to the judgment of the court.” Tibbs, 27 Ill. at 126-27. For this, and other reasons, this court reversed the

decree for the sale of property and remanded for further

proceedings. See also Sullivan v. Sullivan, 42 Ill. 315, 319 (1866) (“After their appointment, and they have taken the oath required by

the statute, then, and not till then, are they clothed with legal

authority to act as commissioners”).

	In the present case, the record confirms that Crowley did not

take an oath as commissioner.

	Third, Rosemary alleged that the circuit court was not

authorized to sell the property because Crowley did not report that

the property could not be divided in kind. Section 17–116 of the

Act provides:

		“Sale of premises not susceptible to division. When the

whole or any of the premises sought to be partitioned cannot

be divided without manifest prejudice to the owners thereof,

and the commissioners appointed to divide the same so report,

the court shall order the premises not susceptible of division

to be sold at public sale, upon such terms and notice of sale as

the court directs.” 735 ILCS 5/17–116 (West 1996).

Thus, it is only upon a finding by the commissioners that the

property is not susceptible of division that the circuit court will

order a sale of the property.

	Crowley’s report states:

		“While the first and second combinations resulted in

relatively similar values, the third combination was

substantially greater. And therefore, the appraiser, acting

as the court appointed commissioner, was unable to

recommend an equitable distribution of these assets among

three parties unless other compensation was provided to the first two combinations and/or some concession was

applied to the third.” (Emphasis added.)

Was Crowley thereby making an unequivocal statement that the

property could not be partitioned without manifest prejudice to the

parties in interest, or was Crowley suggesting that the property

could be partitioned subject to additional compensation to some of

the owners? If the actual finding was that the property could be

divided subject to owelty payments, the circuit court could not

direct that the property be sold. In so doing, the circuit court

would have exceeded its authority under the statute.

	In Peck v. Peck, 16 Ill. 2d 268 (1959), this court held that a judgment of partition was invalid because it was not in conformity

with the Partition Act. The court observed:

		“The object of partition is to enable those who own

property in common to sever their interests, so that each one may take possession of, enjoy, and improve his

separate estate at his own pleasure. [Citations.] The law

favors a division of land in kind, rather than a division of

the proceeds of a sale thereof, and a sale under partition is

proper only where a division of the premises cannot be

made without prejudice to the rights of the interested

parties. [Citations.] To implement this policy our statute

provides for the appointment of commissioners to

determine whether property is susceptible of division,

[citation] and in construing such statute this court has

said: ‘*** whether the proceeding for partition is by

petition under the statute or by bill in chancery, an

essential prerequisite to a decree authorizing a sale is the

appointment of commissioners to make partition, and a

report by them that the land is not susceptible of partition;

*** section 16 of the Partition Act is mandatory, and ***

where partition is sought by either mode, a decree for sale

is erroneous, unless based upon a report of

commissioners.’ [Citations.] Considering these established

principles it is manifest that the court was in error in

directing a sale of appellant’s interest in the manner

prescribed.” Peck, 16 Ill. 2d at 285-86.

This court remanded the cause to the trial court for the entry of a

decree in conformity with the partition statute. See also

Rosenbaum v. Rosenbaum, 38 Ill. App. 3d 1, 15 (1976) (The court observed that a decree of sale is erroneous unless it is based on the

report of a commissioner or commissioners. Commissioners were

not appointed in the case, nor did the report of a commissioner

precede the lower court’s order of sale. Therefore, the judgment of

the court “did not include nor can it be construed to include a valid

partition judgment”).

	Returning to the present facts, the property at issue consisted

of 409 acres of land. The very size of the property suggests that

some division in kind would have been possible. As this court

observed in considering a report that 720 acres of land could not

be divided:

	“It would require much proof to induce the belief that so much

land could not be divided fairly and equally, according to

quantity and quality, among seven claimants.” Tibbs, 27 Ill. at 128.

	Fourth, Rosemary alleged that the circuit court was not

authorized to sell the property in any manner other than at public

sale. Section 17–116 of the Act provides that “the court shall order

the premises not susceptible of division to be sold at public sale.”

735 ILCS 5/17–116 (West 1996). The circuit court allowed the

property to be listed exclusively with Dolan and Murphy. Contracts

to purchase the property were submitted to Dolan and Murphy,

and the property was eventually sold to Moser. There was no

notice of the property’s sale to the public. Nor was there a sale at

auction of the property. Thus, it appears that the circuit court did

not follow the dictates of the statute in conducting the sale of the

property.

	The mechanics of the sale of the property in this case

demonstrate the problems inherent in a sale which is not at public

vendue. Inland’s contract to purchase the property was a matter of

record in the proceeding and was file stamped by the clerk of the

court on July 20, 1998. Moser’s contract to purchase the property

was mailed to the clerk of the court the evening of August 18,

1998, and was presented to the circuit court at the hearing on

August 19, 1998. The purchase price listed in Moser’s contract,

$3,550,000, was only $50,000 more than the purchase price listed

in Inland’s contract. Inland was not informed of Moser’s contract,

and, consequently, Inland did not increase the purchase price listed

in its contract. Moreover, the circuit court refused to reopen

bidding on the property.

	Three parties submitted contracts for the purchase of the

property. These parties were vying for the right to construct new

housing in an area undergoing substantial development. Surely, a

public sale with all parties aware of the proposed bids would have

maximized the returns to the owners of the property.

	The majority purports to answer Rosemary’s argument in a

footnote. See slip op. at 8 n. 3. Therein, the majority notes that the

circuit court had jurisdiction and authority over the parties and the property. The majority also notes that “a circuit court does not lose

jurisdiction because it made a mistake in determining the facts, the

law, or both.”

	The majority notes correctly that a court may not lose

jurisdiction because it makes a mistake in determining the facts or

the law. People v. Davis, 156 Ill. 2d 149, 156 (1993). However, Rosemary did not merely argue that the circuit court made a

mistake in determining the facts or the law. Rosemary argued that

the circuit court failed to follow the very statute empowering the

court to sell the property. As this court observed in Davis, 156 Ill. 2d at 156 (1993), “the power to render the particular judgment or sentence is as important

an element of jurisdiction as is personal jurisdiction and subject

matter jurisdiction.” Further, “a judgment or decree may be void

where a court has exceeded its authority.” Davis, 156 Ill. 2d at 156.

	Thus, in People v. Arna, 168 Ill. 2d 107 (1995), this court held void a trial court order which did not conform to a statutory

requirement. The trial court had jurisdiction of the parties and

subject matter. However, the trial court did not have the inherent

authority to enter an order imposing concurrent terms on the

defendant.

	And in Armstrong v. Obucino, 300 Ill. 140 (1921), this court found that a sale made contrary to statute, and a deed executed in

pursuance of such sale, were void. In so doing, this court observed:

			“The statement has very frequently been made that

where a court has jurisdiction of the parties and the

subject matter, its decree, however erroneous, can only be

attacked on appeal or error; but the rule is subject to an

exception equally well settled,–that a decree may be void

because the court has exceeded its jurisdiction. The bill

prayed for the enforcement of the lien by a sale beyond

and contrary to the powers given by the statute for

enforcing mechanics’ liens, and it does not follow that

because the court had acquired jurisdiction of the parties

and the subject matter it could make such a decree as was

prayed for. Courts are limited in the extent and character

of their judgments, and if they transcend their lawful powers their judgments and decrees are void and may be

collaterally impeached wherever rights claimed under them

are brought in question. The doctrine that where a court

has once acquired jurisdiction it has a right to decide every

question which arises in the cause, and its judgment or

decree, however erroneous, cannot be collaterally assailed,

is only correct when the court proceeds according to the

established modes governing the class to which the case

belongs and does not transcend in the extent and character

of its judgment or decree the law or statute which is

applicable to it. [Citations.] Where a court, after acquiring

jurisdiction, has assumed to enter a decree for a sale which

goes beyond the limits of the jurisdiction and transgresses

the law the decree is void, and the sale based thereon is

likewise an absolute nullity.” Armstrong, 300 Ill. at 142- 143.

See also In re M.M., 156 Ill. 2d 53, 64 (1993) (jurisdiction is “the power of the court to adjudge concerning the general question

involved [citation], as well as the power to grant the particular

relief requested [citations]. Every act of the court beyond that

power is void.”); People v. Wade, 116 Ill. 2d 1 (1987); Woodward v. Ruel, 355 Ill. 163, 173 (19343) (Stone, J., dissenting) (“One of the essentials of a valid judgment is that the court have jurisdiction

to render that particular judgment. Where a court, after acquiring

jurisdiction of the subject matter, transcends the limits of the

jurisdiction conferred, its judgment so entered is void.”); Maloney v. Dewey, 127 Ill. 395, 402-03 (1889) (where a court, having jurisdiction of the person, and jurisdiction to adjudicate upon the

subject matter, renders a judgment not authorized by law in that

class of cases, under any possible proofs, its judgment is not an

instance of mere misapplication of law to particular facts, or

erroneous interpretation of rules in particular cases, but an attempt

to exercise an authority which has no existence in the particular

case).

	To answer Rosemary’s contention, the majority must actually

determine whether the circuit court exceeded its authority in

ordering the sale of the property, and whether the circuit court’s failure to follow the Act rendered its judgment void. The majority

is unwilling to do so.

	Instead, citing In re Marriage of Mitchell, 181 Ill. 2d 169 (1998), the majority suggests that I “overlook[ed] our recent

discussion explaining the distinction between ‘void’ and ‘voidable’

judgments.” Slip op. at 14. The majority educates:

		“In Mitchell we stated that ‘[t]he question whether a judgment is void or voidable depends on whether the court

entering the challenged order possessed jurisdiction over

the parties and the subject matter. [Citation.] If jurisdiction

is lacking, any subsequent judgment of the court is

rendered void ***.’ In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998), quoting People v. Davis, 156 Ill. 2d 149, 155-56 (1993).

			Significantly, the dissent does not dispute that the trial

court in the present case had both subject matter

jurisdiction and personal jurisdiction over the parties. For

this reason, the judgment is not ‘void.’ This is true even if

we were to assume that the trial court failed to strictly

follow the provisions of the Act.” Slip op. at 14-15.

Thus, according to the majority, a judgment rendered by a court

lacking the inherent power to make or enter the particular order

involved is not “void” but merely “voidable.”

	I note that Mitchell relied primarily upon Davis, a decision which affirmed that “the power to render the particular judgment

or sentence is as important an element of jurisdiction as is personal

jurisdiction and subject matter jurisdiction.” Davis, 156 Ill. 2d at 156. I also note that Mitchell nowhere states that it is overruling Davis or the precedent from which Davis is derived. See also Wade, 116 Ill. 2d at 5; Woodward, 355 Ill. at 173 (Stone, J., dissenting); Maloney, 127 Ill. at 402. I am confident that Mitchell was not intended to overrule settled precedent on the elements of

jurisdiction.

	Assuming, however, that Mitchell created some confusion as to the continued validity of the requirement that a court have

inherent power to make or enter the particular order involved, such confusion was dispelled in City of Chicago v. Roman, 184 Ill. 2d 504, 510 (1998), a decision issued ten10 months after Mitchell, and one which the majority fails to acknowledge. In Roman, 184 Ill. 2d at 510, this court reiterated that “[a] void judgment is one entered

by a court that lacks, inter alia, the inherent power to make or enter the particular order involved.” See also People ex rel. Waller v. McKoski, ___195 Ill. 2d ___393, ___401 (2001) (“Because the concurrent sentences imposed upon defendant by the circuit court were not

authorized by section 5–8–4(b), those sentences are void.”).

	I submit that Mitchell is not this court’s latest pronouncement on jurisdiction. I also submit that it is the majority, not this dissent,

which has failed to acknowledge recent precedent of this court.

	The majority offers two distinctions. First, the majority states:

		“Davis discusses jurisdiction ‘in the context of criminal proceedings.’ Davis, 156 Ill. 2d at 156. Criminal proceedings that involve the power to render judgments or

sentences address a separate set of concerns not at issue

in the present matter.” Slip op. at 15.

The majority does not elaborate on the nature of these “concerns”

or explain why these “concerns” require a different application in

the context of a criminal proceeding. Also, the majority does not

cite any law in support of the distinction it seeks to draw.

	I note that Davis cites Thayer v. Village of Downers Grove, 369 Ill. 334, 339 (1938), a case involving special assessments and

bonds, in support of the proposition that “the power to render the

particular judgment or sentence is as important an element of

jurisdiction as is personal jurisdiction and subject matter

jurisdiction.” Davis, 156 Ill. 2d at 156. I also note that Davis cites Armstrong, 300 Ill. at 142-43, a mechanics’ lien case, in support of the proposition that “a judgment or decree may be void where a

court has exceeded its jurisdiction.” Davis, 156 Ill. 2d at 156. Thus, Davis does not draw a distinction between criminal and civil proceedings and does not provide support for the proposition

advanced by the majority.

	Further, Mitchell, 181 Ill. 2d 169, the centerpiece of the majority’s analysis on jurisdiction, does not support a distinction between jurisdiction in criminal and civil proceedings. At issue in Mitchell was the validity of a child support order which expressed the support level as a percentage of income, instead of a dollar

amount. As noted above, Mitchell relied primarily upon Davis in its discussion of jurisdiction. Thus, Mitchell, a civil case, relied upon the holding of Davis, a criminal case, without drawing any distinction between civil and criminal proceedings.

	McKoski, 195 Ill. 2d at 401, Roman, 184 Ill. 2d at 510, Arna, 168 Ill. 2d at 113, and Davis, 156 Ill. 2d at 156, all stand for the proposition, as stated in Roman, that: “A void judgment is one entered by a court that lacks, inter alia, the inherent power to make or enter the particular order involved.” This holding cannot

be overlooked or disposed of on the ground that Davis was a criminal proceeding.

	Next, the majority draws a distinction between cases adopted

before, and after, the reform to the judicial system in 1964. The

majority concedes that the “inherent authority” requirement was a

part of this state’s jurisprudence before 1964, and applied to the

exercise of jurisdiction by our circuit courts. See slip op. at 14.

However, the majority maintains that, with the implementation of

the reform to the judicial system, the circuit courts derive

jurisdiction from the constitution and need not act in conformance

with statutory authority in order to exercise jurisdiction. The

majority explains:

			“The dissent mistakenly relies upon a rule of law not

applicable to the present circumstances. The ‘inherent

authority’ requirement existed before reform to the judicial

system in 1964. Effective January 1, 1964, the General

Assembly amended article VI and replaced limited

jurisdiction: ‘Circuit Court[s] shall have unlimited original

jurisdiction of all justiciable matters.’ Ill. Const. 1870, art.

VI, §9 (amended 1964); accord Ill. Const. 1970, art. VI,

§9 (‘Circuit Courts shall have original jurisdiction of all

justiciable matters except when the Supreme Court has

original and exclusive jurisdiction’). This amendment

created a single integrated trial court vested with

jurisdiction to adjudicate all controversies. [Citation.] Thus, the ‘inherent power’ requirement applies to courts

of limited jurisdiction and administrative agencies.” Slip

op. at 13-14..

The majority concludes that: “a circuit court is a court of general

jurisdiction, which need not look to the statute for its jurisdictional

authority.” Slip op. at 14.

	This court has rejected the notion that a court of general

jurisdiction, which derives its jurisdiction from the constitution,

may proceed in derogation of statutory authority. In In re M.M., 156 Ill. 2d at 65, this court observed: “[I]t is by reason of our

constitution that our circuit courts acquire power to adjudge ***.”

However, “it is by reason of the statute that the justiciable matter

exists,” and the circuit court must proceed within the strictures of

the statute. In re M.M., 156 Ill. 2d at 65-66.

	The distinction the majority draws is unavailing. To date, this

court has steadfastly recognized that the circuit court must have

the inherent power to make or enter the particular order involved. Roman, 184 Ill. 2d at 510. This court has also recognized that “a judgment or decree may be void where a court has exceeded its

authority.” Davis, 156 Ill. 2d at 156, citing Armstrong, 300 Ill. at 142-43.

	The majority misapprehends my dissent. The majority states:

			“The dissent maintains that the trial court lacked

authority to order the sale because it failed to comply with

the Act, and that this rendered the judgment ‘void.’

According to the dissent, failure to follow the Act is fatal

to the circuit court’s jurisdiction. The Act, the dissent

argues, gives the circuit court the ‘inherent authority’ to

adjudicate the controversy and, therefore, failure to follow

procedure under the Act divests the court of jurisdiction

and renders the order ‘void.’ ” Slip op. at 13.

I make no pronouncement in my dissent as to the validity of the

circuit court’s order and the resultant sale. My objective is more

modest. I merely ask that the majority address Rosemary’s

contention that the circuit court’s judgment, and the sale pursuant

thereto, were void because the circuit court failed to comply with the Act in several aspects. The majority, however, “declines to

address or outline those irregularities because they are secondary

to Rule 305(j).” Slip op. at 1312-13.

B. Fraud in Sale

	In her appeal, Rosemary suggested that a fraud was perpetrated in the sale of the property to Moser. She directed this

court’s attention to Moser’s access to information regarding the

other contracts to purchase the property; the circumstances

surrounding Moser’s last minute contract to purchase the property;

the lack of notice to defendants regarding Moser’s contract to

purchase the property; the representations made to Inland that the

circuit court would approve Inland’s contract to purchase the

property, and that Inland’s presence at the hearing was not

necessary; the circuit court’s denial of Inland’s petition for leave to

intervene; and the circuit court’s refusal to reopen the bidding

when presented with an offer $50,000 higher than Moser’s.

	The majority does not give voice to, or acknowledge

Rosemary’s argument in any way. I am of the opinion, however,

that this court has an affirmative duty to address this argument, for,

if the argument is meritorious, it obviates all reasons for extending

Rule 305(j) protection to this sale.

	From my review of the record, this case appears troubled by

irregularities. Plaintiff’s complaint for partition was not verified as

required by section 17–101 of the Act.5 See 735 ILCS 5/17–101 (West 1996). Plaintiff averred in November, 1995, that he and

defendants held title to the property as tenants in common. In

actuality, the estate did not release its interest in the property until

January 31, 1997. The circuit court did not ascertain and declare

the rights and interest of the parties prior to appointing a

commissioner to partition the property. See 735 ILCS 5/17–105,

5/17–108 (West 1996). The circuit court did not require that the commissioner take an oath “fairly and impartially to make

partition” of the property. See 735 ILCS 5/17–107 (West 1996).

The commissioner’s report did not contain an unequivocal finding

that the property could not be divided. See 735 ILCS 5/17–109

(West 1996). The property was not sold at public vendue.

	These irregularities aside, the circuit court ordered the sale of

the property as one unit. The property consisted of three parcels of

land, with extensive acreage. In his report, Crowley valued the

property at $4,859,000 if the three parcels were sold individually,

compared to $4,500,000 if the property was sold as a unit. Parcel

1 was located a mile away from Parcels 2 and 3. Thus, the sale of

the property as a unit could not be justified by contiguity of the

parcels. In Meeker v. Evans, 25 Ill. 283 (1861), this court observed:

			“It would seem, that when several distinct tracts of land

are ordered to be sold by the master, under a decree, it is

the duty of that officer to sell each tract separately, unless

it is evident that the land will be more valuable in one than

in several tracts. [Citation.] It is believed that this rule is of

general if not uniform application. *** When several tracts

of land are sold en masse, for a gross sum, on the same biddings, the presumption is, that it must have been sold

for a smaller amount than they would have brought had

each tract been offered separately. When offered en masse, persons of limited capital are necessarily precluded from competing at the sale. And when such a sale is made,

and an objection is interposed on that ground, to its

confirmation, it will be set aside; unless the evidence

clearly shows that it has produced more money than it

would have done had it been offered in separate parcels.”

Meeker, 25 Ill. at 285.

See also Bowen v. Bowen, 265 Ill. 638, 640 (1914) (“It is the duty of the master in making a sale to offer the land in parcels if the

same is susceptible of division. If the master fails in the

performance of his duty in this regard and the lands are thereby

sold for an inadequate price the sale will be set aside upon a proper

showing.”).

	The circuit court ordered the sale of the property as one unit

even though the evidence showed that it would take longer to sell

the property as a unit, and the property would fetch a higher price

if the parcels were sold individually. This irregularity in the sale of

the property, along with the others noted above, fuels concerns

that the interest of defendants in the property was not protected.

	In Meeker, 25 Ill. at 283, this court also stated:

			“In conducting judicial sales good faith must be

observed, as well by the purchaser as by the officer,

intrusted by the court and the law, to enforce its

judgments and decrees, in that mode. The rights of all

parties to the proceeding must be regarded and properly

protected. When, by a violation of the requirements of the

law, by the officer conducting a sale, or by the purchaser

at the biddings, the rights of the owner are sacrificed or

injuriously affected, the court will interpose, and set aside

the sale, and require it to be again offered. Any fraud by

the purchaser, by which competition is prevented, or any

neglect of duty on the part of the officer producing that

result, is regarded as sufficient grounds to order a re-sale.”

Meeker, 25 Ill. at 284.

	And, in Tibbs, this court observed:

			“When it is considered, that titles to valuable lands can

be divested by this statutory proceeding, it is essential the

statute should be observed, the courts not tolerating any

essential departure from it.” Tibbs, 27 Ill. at 128.

I could not agree more with this court’s assessment that the

authority to partition lands also entails a duty to protect the rights

and interest of all parties to the lands.

	The majority does acknowledge my concerns regarding the

possibility of fraud in this matter. In footnote 34 of the opinion, the

majority states:

			“The dissent also maintains that additional irregularities

suggest fraud in the sale. The dissent fails to explain how

this overcomes Rule 305(j) and Rosemary’s failure to file

a motion to stay in the appellate court.” Slip op. at 911 fn.4.

	Since the majority requests an explanation, I provide one. This

court is a court of equity and justice; this court has an affirmative

duty not to condone fraud. Litigants seeking the protection of this

court must do equity. Likewise, under our Rule 305(j), a purchaser

seeking the protection of this court must have acted in good faith

in the purchase of the property.

	This court affords protection to bona fide purchasers at judicial sales because these purchasers rely upon the court

processes and are entitled to a measure of security in their

purchases. Where a sale is procured through fraud or collusion

between a plaintiff and a purchaser, the purchaser is not only aware

of the irregularities in the sale but is an active participant thereto.

By what right does that purchaser lay claim to protection of the

fraudulent sale? He has not relied upon the court processes, but

upon his own actions in effectuating the purchase of the property.

To afford him the protection of this court is to place a premium

upon his misconduct. And what of the rights of the defendant who

has been deprived of his property? It must be remembered after all

that “[w]hilst the law guards the rights of bona fide purchasers at judicial sales with scrupulous care, it will protect owners from

being deprived of their property by proceedings unauthorized by

law.” Morris v. Hogle, 37 Ill. 150, 155 (1865); see also Brod v. Brod, 390 Ill. 312, 325 (1945) (“While the right to partition is an absolute one, [citation] a court of equity will not permit the

proceeding to be used to circumvent and avoid the established

principles of law and public policy and will, in the exercise of its

general, equitable jurisdiction, control the proceedings so as to

protect the rights of all parties concerned.”); Bydalek v. Bydalek, 396 Ill. 65, 71 (1947); Barnes v. Freed, 342 Ill. 73, 78 (1930) (where consideration paid for land was inadequate, purchaser at a

judgment sale could retain his advantage only by showing that he

acquired his title by proceedings free from fraud or irregularity).

	This court has long espoused the principle that a party may

obtain relief, on the ground of fraud, against a void as well as a

voidable judgment. Elting v. First National Bank of Biggsville, 173 Ill. 368, 391 (1898), citing Nelson v. Rockwell, 14 Ill. 375 (1853). The majority eschews this principle without explaining why this court should place its imprimatur upon, and afford protection

to, a sale which may be fraudulent.

	Explanations aside, the majority fails to notice that its

approach to the fraud issue is somewhat inconsistent with the

reasons it advances in support of the circuit court’s judgment, and

the sale pursuant thereto. The majority states:

			“Public policy of this state supports our conclusion.

Illinois law protects the integrity and finality of property

sales, including judicial sales. [Citations.] Indeed, it

extends this protection to purchasers who without notice at the time of the purchase buy in good faith. This finality and permanence is relied on by both purchasers and others

in connection with the purchase of the property, including

financial institutions, title insurers, realtors, and tenants.

Absent this policy, no person would purchase real

property involved in a judicial proceeding, if afterwards he

incurred the hazard of losing the property due to facts unknown to him at the time of the sale.” Slip op. at 12-13. (Emphases added.)

Thus, the majority recognizes that Illinois law affords protection to

good-faith purchasers, that is “purchasers who without notice at

the time of the purchase buy in good faith.” Further, the majority

recognizes that this court extends protection to a good-faith

purchaser in order to protect the purchaser from the “hazard of

losing the property due to facts unknown to him at the time of the

sale.” However, the majority refuses to address Rosemary’s

contention that the sale of the property was fraudulent. Instead, the

majority extends the protection of our Rule 305(j) to Moser’s

purchase of the property. The inconsistency could not be more

apparent.

CONCLUSION

	Rosemary argued that the judgment of partition, and the sale

pursuant thereto, were void because the circuit court did not

comply with the requirements of the Act. The majority answers

that Rule 305(j) precludes Rosemary from contesting the validity of the partition sale. However, Rosemary’s argument called into

question whether the circuit court exceeded its statutory authority

and whether there was a final judgment in the circuit court. If the

circuit court’s judgment, and the resulting sale, are void, Rule

305(j) does not apply, for it is a requirement of the rule that the

property passed pursuant to a final judgment. A void judgment may

be attacked either directly or indirectly at any time. Davis, 156 Ill. 2d at 155.

	In addition, Rosemary questioned whether the sale of the

property to Moser was fraudulent. While I do not imply that the

sale was fraudulent, the record presents sufficient facts to merit

consideration of this issue. In the event due consideration leads to

the conclusion that the sale of the property to Moser was

fraudulent, I, for one, could not endorse or protect the sale.

	I believe this court is duty-bound to protect the rights of all

parties to the partition action. The rights of one owner must not be

sacrificed or injuriously affected to benefit another. Likewise, the

rights of the owner must not be compromised to benefit one who

is not a good faith purchaser at a judicial sale. Where it appears

that the party seeking partition of the land has colluded with the

purchaser to effectuate a fraudulent purchase, that purchase must

be set aside.

	This court can only fulfill its responsibilities to the owners of

the land by examining questions of jurisdiction, and exhibiting

intolerance to all manners of fraud and collusion. The majority

believes otherwise. In extending Rule 305(j) protection to the

present sale, the majority overrules long settled precedent

regarding the elements of jurisdiction, and clarifies that fraud is not

a sufficient ground to withhold Rule 305(j) protection from a

purchaser. My disagreement could not be greater. Accordingly, I

dissent.

	JUSTICES McMORROW and KILBRIDE joins in this dissent.