THIRD DIVISION

                                  Date Filed:

No. 1-01-4387

REVOLUTION PORTFOLIO, LLC,        ) Appeal from the

                                  ) Circuit Court of

          Plaintiff-Appellee,     ) Cook County.

                                  )

          v.                      ) No. 00 L 13840

                                  )

JOSEPH S. BEALE,                  ) Honorable

                                  ) Thomas P. Quinn,

          Defendant-Appellant.    ) Judge Presiding.

     JUSTICE HALL delivered the opinion of the court:

     The defendant, Joseph S. Beale, appeals from orders of the

circuit court of Cook County holding the defendant in contempt

for failing to submit to an examination pursuant to a citation to

discover assets, denying the defendant's motion to quash the

citation and lifting the stay of a writ of body attachment.  

     On appeal, the defendant contends that the circuit court

lacked personal jurisdiction over him because the citation to

discover assets was served on his attorneys.  As a result, he

maintains that the orders holding him in contempt and issuing a

writ of body attachment are void.  

     The following facts are undisputed and are pertinent to our

review.  

     The plaintiff revived a Florida judgment against the

defendant in Illinois.1  The plaintiff then issued a citation to discover assets (the citation) to the defendant which was

returnable on August 15, 2001.  The citation was served on the

law firm of Gould & Ratner, attorneys who had represented the

defendant.  On August 14, 2001, one day prior to the return date

of the citation, the circuit court issued a rule to show cause as

to why the defendant should not be held in contempt of court for

failing to appear on August 14, 2001, and respond to the

citation.  On September 10, 2001, the circuit court entered an

order allowing the sheriff of Cook County to serve the rule to

show cause by leaving a copy of the rule with the doorman or

concierge of the defendant's residence and mailing a copy to the

defendant.  According to the record on appeal, service of the

rule on the concierge of the defendant's residence was made on

September 26, 2001, and a copy of the rule was mailed to the

defendant on the same date.  

     On October 4, 2001, the defendant failed to appear.  The

circuit court entered an order holding the defendant in contempt

of court and issued a writ of body attachment with bond set at

$3,000.  On October 11, 2001, the defendant filed a motion to

vacate the rule to show cause and the contempt order and to quash

and to stay the enforcement of the writ of body attachment.  On

October 18, 2001, the circuit court stayed the writ of body

attachment until November 7, 2001.

     On November 7, 2001, the circuit court denied the

defendant's motion to quash and lifted the stay of the writ of body attachment.  

     On December 5, 2001, the defendant filed his notice of

appeal from the circuit court's orders of October 4, 2001,

finding him in contempt and November 7, 2001, denying the motion

to quash and lifting the stay of the writ of body attachment.  

     At the outset, the plaintiff requests that it be allowed to

refer to "relevant matters which occurred after [the defendant]

filed this appeal and are thus not shown in the record on

appeal."  The plaintiff asserts that the defendant appeared in

court on January 10, 2002, in response to a letter from the

sheriff indicating that he would be arrested unless he appeared

voluntarily on the body attachment.  The plaintiff further

asserts that the defendant complied with the circuit court's

January 10, 2002, order that he appear on February 1, 2002, for

his examination and production of documents.  The plaintiff has

included a copy of the circuit court's January 10, 2002, order as

well as a copy of the transcript of the proceedings on August 14,

2001.  The plaintiff did not move to supplement the record with

these documents.

     Attachments to briefs not included in the record on appeal

are not properly before the reviewing court and cannot be used to

supplement the record.  Carroll v. Faust, 311 Ill. App. 3d 679, 683, 725 N.E.2d 764, 768 (2000).  We will therefore not consider

the events that occurred after the filing of the notice of appeal

in this case or the references to either the January 10, 2002, order or the August 14, 2001, report of proceedings in our

disposition of this case.

     Although neither party has raised the question of this

court's jurisdiction, a reviewing court has a duty to consider

sua sponte its jurisdiction.  Vowell v. Pedersen, 315 Ill. App. 3d 665, 665, 734 N.E.2d 169, 170 (2000).  We have a duty as an

appellate court to dismiss an appeal if jurisdiction is wanting. 

Vowell, 315 Ill. App. 3d at 667, 734 N.E.2d at 171.

     The law is well settled that a void order or judgment can be

attacked at any time or in any court, in either a direct or

collateral proceeding.  JoJan Corp. v. Brent, 307 Ill. App. 3d 496, 502, 718 N.E.2d 539, 544 (1999).  Instead of originating

under any specific provision of the Code of Civil Procedure, a

motion for relief from a void order or judgment arises from the

inherent powers of the court to expunge void acts from its

records.  JoJan Corp., 307 Ill. App. 3d at 502, 718 N.E.2d at 544.  However, jurisdiction is not vested with the reviewing

court merely because an order or judgment is, or is alleged to

be, void, and compliance with the rules governing appeals is

necessary before a reviewing court may properly consider an

appeal from a judgment or order that is, or is asserted to be,

void.  JoJan Corp., 307 Ill. App. 3d at 504, 718 N.E.2d at 545- 46.

     In his jurisdictional statement, the defendant asserts that

this court has jurisdiction pursuant to Supreme Court Rule 304(b)(5) (155 Ill. 2d R. 304(b)(5)).  Rule 304(b)(5) provides as

follows:

	     "The following judgments and orders are appealable

without the finding required for appeals under paragraph (a)

of this rule:2

	* * *

		     (5) An order finding a person or entity in

contempt of court which imposes a monetary or other

penalty."  155 Ill. 2d R. 304(b)(5).

     In this case, the defendant was held in contempt of court on

October 4, 2001, and the circuit court issued a writ of body

attachment.  On October 11, 2001, the defendant filed his motions

to vacate and quash, which were denied.  The notice of appeal in

this case was filed on December 5, 2001.

     Under Rule 304(b)(5), an order finding a person in contempt

and imposing a monetary or other penalty is immediately

appealable.  Longo v. Globe Auto Recycling, Inc., 318 Ill. App. 3d 1028, 1036, 743 N.E.2d 667, 673 (2001).  The time for

appealing Rule 304(b) orders is mandatory, not optional.  Longo, 318 Ill. App. 3d at 1036, 743 N.E.2d at 673.  Contempt citations

along with all other orders falling within the scope of Rule

304(b) must be appealed within 30 days of their entry or be barred.  Longo, 318 Ill. App. 3d at 1036, 743 N.E.2d at 673.  

     However, in order for the appellate court to assume

jurisdiction, the contempt order must impose sanctions of some

kind upon the contemnor.  Vowell, 315 Ill. App. 3d at 666, 734 N.E.2d at 171; 155 Ill. R. 304(b)(5).  It is the imposition of

the sanction that is final and appealable.  Vowell, 315 Ill. App. 3d at 666, 734 N.E.2d at 171.  

     In this case, no sanction was imposed.  While the circuit

court issued a writ of attachment, both a rule to show cause and

a writ of attachment are merely means by which to bring the

alleged contemnor before the court when the failure to comply

with an order of the court is the alleged contemptuous behavior. 

In re Marriage of Rizza, 237 Ill. App. 3d 83,87,603 N.E.2d 134, 138 (1992).  

     Thus, the defendant's failure to appeal the contempt

citation within 30 days of its entry would not bar his appeal

because the contempt order was not final for purposes of appeal.3  Nonetheless, in the absence of the imposition of a sanction, the

contempt order remains nonfinal and unappealable.       

     Since the circuit court's order holding the defendant in

contempt did not impose a sanction, Rule 304(b)(5) does not

provide a basis for this court's jurisdiction to consider the

defendant's appeal.  However, that does not end our

jurisdictional inquiry, since the defendant also appealed from

the denial of his motion to quash and the lifting of the stay of

the writ of body attachment.

     Attachment is a legal process that seizes and holds the

property of the defendant until the rights of the parties are

determined in the principal suit.  Old Kent Bank v. Stoller, 254 Ill. App. 3d 1085, 1092, 627 N.E.2d 265, 269 (1993).  Thus, such

orders are interlocutory in nature and character and, because

they do not completely dispose of any claim or terminate the

litigation between the parties, are generally nonfinal and

nonappealable.  Stoller, 254 Ill. App. 3d at 1092, 627 N.E.2d at 269.  The fact that in this case it was the defendant who was

ordered seized does not affect the applicability of the above

analysis.  

     Nevertheless, prejudgment attachment is essentially a

separate and distinct action that takes place within the context

of the underlying action.  Stoller, 254 Ill. App. 3d at 1092, 627 N.E.2d at 269.  There can be no meaningful relief from an order

concerning prejudgment attachment if appeal before final judgment was not available.  Stoller, 254 Ill. App. 3d at 1092, 627 N.E.2d at 269.  Therefore, a decision granting or denying a motion to

quash an attachment order that was previously entered must be

considered final for purposes of Rule 304(a).  Stoller, 254 Ill. App. 3d at 1092, 627 N.E.2d at 269.  

     The circuit court, however, did not make a Rule 304(a)

finding in this case.  Therefore, that portion of the order of

November 7, 2001, denying the defendant's motion to quash the

writ of body attachment is not appealable at the present time.    

Nonetheless, we note that the November 7, 2001, order also lifted

the stay of the writ of body attachment.

     Although not contained in his jurisdictional statement, in

his notice of appeal, the defendant stated that his appeal was

also brought pursuant to Supreme Court Rule 307 (188 Ill. 2d R.

307).  Rule 307 provides in pertinent part as follows:

	     "An appeal may be taken to the Appellate Court from an

interlocutory order of court:

		 (1) granting, modifying, refusing, dissolving, or

refusing to dissolve or modify an injunction." 188 Ill.

R. 307(a)(1). 

Courts have treated the denial of a motion to stay as a denial of

a request for a preliminary injunction.  Lundy v. Farmers Group, Inc., 322 Ill. App. 3d 214, 216, 750 N.E.2d 314, 316 (2001).

     The defendant neither designated his appeal as an

interlocutory appeal nor attempted to comply with the filing requirements of Rule 307.  See 188 Ill. 2d Rs. 307 (a), (c).  We

will treat the appeal from the lifting of the stay of the writ of

body attachment as a Rule 307 appeal.  

     The only question a reviewing court must decide in an

interlocutory appeal is whether there was a sufficient showing to

sustain the trial court's order granting or denying the relief

sought.  Lundy, 322 Ill. App. 3d at 218, 750 N.E.2d at 318.  An appeal pursuant to Rule 307 may not be used as a vehicle to

determine the merits of a plaintiff's case.  Keefe-Shea Joint Venture, Inc. v. City of Evanston, 332 Ill. App. 3d 163, 168, 773 N.E.2d 1155, 1160 (2002).

     In this case, the circuit court lifted the stay of the writ

of body attachment in conjunction with its denial of the

defendant's motion to quash the writ.  Neither the contempt

finding nor the denial of the motion to quash the writ of body

attachment is appealable at the present time.  Since under Rule

307, we may not address the merits of the case, i.e., whether the proceedings in this case are void for lack of personal

jurisdiction, we find it logical that having denied the motion to

quash the writ of body attachment, the circuit court lifted the

stay on the writ.  Therefore, we determine that the circuit court

did not err in lifting the stay of the writ of body attachment.

     In sum, we conclude that the October 4, 2001, order holding

the defendant in contempt of court is not final for purposes of

appeal in the absence of the imposition of a sanction.  We further conclude that the portion of the November 7, 2001, order

denying the defendant's motion to quash the writ of body

attachment is not appealable in the absence of a Rule 304(a)

finding.  Therefore, the appeal as to those orders must be

dismissed.

     Finally, we conclude that the portion of the November 7,

2001, order lifting the stay of the writ of body attachment is

appealable pursuant to Rule 307, and we affirm that portion of

the circuit court's order.

     The judgment of the circuit court is affirmed in part and

the appeal is dismissed in part.

     Affirmed in part and dismissed in part,.

     HOFFMAN and WOLFSON, JJ., concurs.

	JUSTICE HOFFMAN, dissenting:

	Once our jurisdiction has been invoked, as the majority finds

that it has been in this case, I believe that we may, and should,

address the trial court's jurisdiction.  Because I believe that the

trial court lacked jurisdiction to enter the attachment underlying

the motion for a stay which is the subject of this appeal, I must

respectfully dissent.

	The majority is correct in its statement that, on review of an

interlocutory order pursuant to Supreme Court Rule 307 (188 Ill. 2d

R. 307)), the merits of the underlying case are not at issue. 

Scott v. Assurance Co. of America, 253 Ill. App. 3d 813, 814, 625 N.E.2d 439 (1993).  However, the majority's reliance upon this general rule in declining to address the question of the trial

court's jurisdiction in this matter is misplaced.  First, contrary

to the majority's assertion, the issue of a court's jurisdiction

over the person of a party does not go to the merits of the

controversy.  Second, to the extent necessary, an appellate court

may consider substantive issues when reviewing the propriety of an

interlocutory order in order to determine whether the trial court

acted within its authority.  In re Lawrence M., 172 Ill. 2d 523, 526, 670 N.E.2d 710 (1996).  Third, an order entered by a court

which fails to acquire jurisdiction over a party may be attacked

and vacated at any time or in any court.  Morey Fish Co. v. Rymer Foods, Inc., 158 Ill. 2d 179, 186-87, 632 N.E.2d 1020 (1994).  Fourth, an appellate court is obligated not only to examine its own jurisdiction, but also to take notice of matters which go to the

jurisdiction of the circuit court. See Eastern v. Canty, 75 Ill. 2d 566, 570, 389 N.E.2d 1160 (1979).

	Supreme Court Rule 277 provides that a supplementary

proceeding is commenced by service of a citation upon the party

against whom it is brought.  134 Ill. 2d R. 277(b).  The citation

is required to be served and returned "in the manner provided by

rule for service, otherwise than by publication, of a notice of

additional relief upon a party in default."  134 Ill. 2d R. 277(c). 

Supreme Court Rule 105, which provides for service of a notice of

additional relief upon a party in default, sets forth two means by

which a citation may be served; namely: 1) "any method provided by

law for service of summons, either within or without this State[;]";

and 2) "prepaid certified or registered mail addressed to the

party, return receipt requested, showing to whom delivered and the

date and address of delivery."  134 Ill. 2d R. 105.

	Absent waiver of service, a court can only acquire

jurisdiction over the person of a party by service of process in

the manner directed by statute or supreme court rule.  See State Bank of Lake Zurich v. Thill, 113 Ill.l. 2d 294, 308, 497 N.E.2d 1156 (1986).  In this case, Joseph S. Beale, was not served with the

citation by any means authorized by Rule 105, nor did he waive that

service.  Rather, the citation was served upon his then former

attorneys.  As a consequence, I believe that the circuit court

lacked jurisdiction to enter the attachment which was the subject of Beale's motion for a stay.  Unlike the majority, I do not

believe that the propriety of the trial court's denial of Beale's

motion for stay can be addressed without first addressing the trial

court's authority to enter the underlying attachment.

	Based on the foregoing analysis, I would reverse the circuit

court's order denying Beale's motion for a stay and vacate the

underlying attachment.