No. 2--00--0039

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

COMMUNITY BANK OF PLANO, n/k/a	  )	Appeal from the Circuit Court

First National Bank of 	  )	of Kendall County.

Joliet/Plano Banking Center,	  )

	  )	

	Plaintiff-Appellee,	  )

                     		   )

v.                               )	No. 93--L--60

  		  )

	 	 )

A. NORMAN OTTO and ALLAeEN C. OTTO,)	

Special Adm'rs of the Estate    	  )	

of August C. Otto, Jr.,    	   ) Honorable

                                 ) Thomas E. Hogan,

	Defendants-Appellants.	  )	Judge, Presiding.

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court:  

	Defendants, A. Norman Otto and Allaen C. Otto, appeal from the trial court’s dismissal of their petition to set aside and vacate

judgment and the denial of their motion for rehearing.  We vacate

the trial court’s judgment.

	We first note that plaintiff, Community Bank of Plano (bank),

has moved to dismiss this appeal pursuant to Supreme Court Rule 373

(134 Ill. 2d R. 373), in that defendants’ notice of appeal was

filed 31 days after the entry of the order from which this appeal

is taken.  However, the thirtieth day after the entry of the order fell on a Sunday.  The notice of appeal was filed the next day.  Therefore, the notice of appeal was timely filed, and we deny the

bank’s motion to dismiss. 

	The bank also seeks the dismissal of the appeal because

defendants failed to provide in their brief a jurisdictional basis

for this court to hear this appeal, as required by Supreme Court

Rule 341(e)(4)(ii) (177 Ill. 2d R. 341(e)(4)(ii)) (miscited by the

bank as Supreme Court Rule 341(e)(3)), and a statement regarding

the standard of review for each issue, as required by Supreme Court

Rule 341(e)(3) (177 Ill. 2d R. 341(e)(3)).  We note that defendants

have provided a statement of jurisdiction and find that it is

sufficient.  However, defendants have in fact failed to include any

statement regarding the standard of review.  Defendants similarly

failed to provide a statement of the standard of review in their

brief in a prior appeal arising out of this litigation.  This

failure to follow the supreme court rules was brought to

defendants’ attention.  See Community Bank v. Otto, No. 2--97-- 1298, slip order at 4 (1998) (unpublished order under Supreme Court Rule 23).  We admonish defendants and their counsel that compliance

with the supreme court rules is not a matter of convenience. Having

had the same deficiency brought to their attention previously in

this case, defendants’ lack of compliance with the rules should be inexcusable.  Nevertheless, defendants’ brief is not so deficient

as to prevent our review of the appeal.  See In re Marriage of Corkey, 269 Ill. App. 3d 392, 396 (1995).  Therefore, we will not dismiss the appeal.

	On November 24, 1997, the trial court entered judgment in the

amount of $313,555.53 in favor of the bank and against the estate

of August C. Otto, deceased.  This judgment was affirmed  in No. 2- -97--1298.  In December 1997, the bank filed a citation to discover

assets against defendants as co-administrators of the estate of

August C. Otto and as transferees of certain property that had been

transferred in 1994.  While the citation was ordered to issue, no

service of the citation was obtained. 

	In April 1998, the bank filed a verified petition for the

issuance of a citation to recover property on behalf of the estate,

seeking relief pursuant to section 16--1 of the Probate Act of 1975

(755 ILCS 5/16--1 (West 1998)).  The citation issued, and, after a

hearing, the trial court entered an order on March 19, 1999, in

which the court found that the 1994 property transfer had been a

fraudulent conveyance.  The court ordered the transfer of the

property to the Estate of August C. Otto and allowed the bank to

levy on the property, which was subsequently sold at a sheriff’s

sale.

	On June 16, 1999, defendants filed a petition pursuant to

section 2--1401 of the Civil Practice Law (735 ILCS 5/2--1401 (West

1998)) to set aside and vacate the March 19 order.  The bank filed

a motion to dismiss that was granted on July 27.  Defendants then

filed on August 19 a motion to vacate the order dismissing their

petition.  The record is unclear as to what happened next; however,

on September 24, the court entered an order again dismissing the

section 2--1401 motion as "not being in compliance" with section 2-

-1401(a) and taking under advisement "the motion to Declare the

Judgment Void."  On December 10, the court ruled that the judgment

order was not void and denied the motion to vacate.  This appeal

followed.

	Defendants first contend that the trial court erred in

determining that the March 19 judgment was not void.  A void order

or judgment can be attacked at any time or in any court, in either

a direct or a collateral proceeding.  JoJan Corp. v. Brent, 307 Ill. App. 3d 496, 502 (1999).  A judgment is void only where there

is a total lack of jurisdiction in the court that entered the

judgment, either as to subject matter or as to the parties.  In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998).  To support a collateral attack, the lack of jurisdiction must appear on the face

of the record.  JoJan, 307 Ill. App. 3d at 505.  If the record does not contain evidence that the court’s action is a nullity, or, if

it recites jurisdictional facts that are untrue, the judgment is

voidable and must be attacked directly for the purpose of

establishing with other evidence the untruthfulness of the record. 

In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 201 (1993).  A judgment is merely voidable if it is entered erroneously by a court

having jurisdiction; such a judgment is not subject to collateral

attack.  Mitchell, 181 Ill. 2d at 174.  Once a court has jurisdiction, an order will not be rendered void because of an

error or impropriety in the court’s determination of law, and a

court may not lose jurisdiction merely because it makes a mistake

in determining the facts, the law or both.  Mitchell, 181 Ill. 2d at 174-75.

	Subject matter jurisdiction is the court’s power both to

adjudicate the general question involved and to grant the

particular relief requested.  In re Estate of Gebis, 186 Ill. 2d 188, 192 (1999).  Here, the bank petitioned the court, pursuant to

the Probate Act, to issue a citation "ordering A. Norman Otto and

Allen C. Otto to convey the real property *** to the Estate of

August C. Otto, Deceased as Grantee."  However, the mere invocation

of the Probate Act is not sufficient to confer jurisdiction on the

trial court. Our review of the record reveals no pleading related to the opening of a decedent’s estate in August C. Otto’s name, the

issuance of letters testamentary or of administration for such an

estate, or the admission of August C. Otto’s will to probate.

Indeed, the bank’s petition itself alleged that "no Probate of the

Estate of August C. Otto has been undertaken."  We are unaware of any reason whereby the Probate Act can be used as a basis for

jurisdiction when no estate has been opened.  See Gebis, 186 Ill. 2d at 196 (where no decedent’s estate existed, the trial court

lacked jurisdiction to adjudicate claim that should have been

brought against it).

	The bank argues that the June 1996 appointment of defendants as special co-administrators in the underlying case is evidence of

the existence of the estate.  However, a special administrator

appointed pursuant to the Civil Practice Law for the purpose of

defending an action is not equivalent to an administrator appointed

pursuant to the Probate Act.  Hannah v. Gilbert, 207 Ill. App. 3d 87, 90 (1990).  Such a special administrator is empowered only to

defend the action in which he is appointed; no letters of office to

administer the estate issue.  Hannah, 207 Ill. App. 3d at 90.  While defendants were appointed as special administrators in the

action in which the bank obtained judgment against August Otto,

that appointment did not open a decedent’s estate of August C. Otto.  Defendants were not empowered to do anything beyond

defending the underlying action.

	Until a decedent's will is admitted to probate or letters of

administration issue, a trial court lacks any authority to

adjudicate a creditor's claim against a decedent and thus a claim 

cannot be filed against a decedent's estate until such an estate

has been opened.  Gebis, 186 Ill. 2d at 196.  In fact, the trial court's only choice is to dismiss such a creditor's claim for lack

of subject matter jurisdiction, and any other order by the court is

void and we must vacate it.  Gebis, 186 Ill. 2d at 197.  Of course, the creditors of a deceased may petition the circuit court either

for admission of the decedent's will to probate (755 ILCS 5/6-2

(West 1996)) or for letters of administration (755 ILCS 5/9-3(West

1996)).

	As Gebis pointed out, at first such a decision may appear unduly technical, but the consequences of a contrary result are

significant.  Article 18 of the Probate Act establishes detailed

procedures for the adjudication of claims against a decedent's

estate.  Among these procedures is a schedule setting forth the

priority in which claims against a decedent's estate must be paid. 

The Ffailure to follow the statutory scheme set forth in the Probate

Act could circumvent the priority schedule established in the Act.

	The record shows no evidence of the existence of an estate of

August C. Otto, deceased.  There being no such entity, the Probate

Act did not confer jurisdiction on the trial court to adjudicate

the bank’s petition.  Therefore, the March 19, 1999, order was void

and must be vacated.

	Because of our resolution of this issue, we need not address

defendants’ other contentions.	

	For these reasons, the judgment of the circuit court of

Kendall County is vacated.

	Vacated.

	GEIGER and BYRNE, JJ., concur.