No. 2--02--0097

_________________________________________________________________ 

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

BA MORTGAGE, LLC,           	)	Appeal from the Circuit Court

                              	)	of Du Page County.

     Plaintiff-Appellee,        )

                                )

v.                              )  No. 00--CH--1510

                                )

MARGARET BURGHOLZER,	           )  Honorable	 

                                )	Bonnie M. Wheaton,

	Defendant-Appellant.	)	Judge, Presiding.

_________________________________________________________________

     JUSTICE KAPALA delivered the opinion of the court:

	Plaintiff, BA Mortgage, LLC, sued defendant, Margaret Burgholzer, to foreclose a mortgage, and obtained a default

judgment.  Thereafter, defendant appeared and moved to vacate the

default judgment.  The trial court refused to do so.  Defendant

appeals, contending that the court lacked personal jurisdiction

over her because she was never properly served with a summons and

complaint.

	Plaintiff filed its complaint to foreclose the mortgage on

December 12, 2000.  The affidavit of the special process server,

Larry Biela, states that on December 28, 2000, he served defendant

by leaving a copy of the summons and complaint with defendant's 14-

year-old daughter, Samantha Burgholzer.  Although the affidavit was

executed on December 28, 2000, it states, "Date of Mailing:

12/29/2000."

	Defendant did not appear and the trial court entered a default judgment.  On July 31, 2001, Ronald Moore bid $110,500 for the

property at a judicial sale.  The bid resulted in a surplus of

$2,903.29.  On August 10, 2001, the court approved the sale and

awarded Moore possession.

	On October 4, 2001, defendant filed a special and limited

appearance and a motion to dismiss for lack of jurisdiction. 

Defendant alleged that she never received notice of the foreclosure

proceedings and that the return of summons was facially defective. 

The trial court denied the motion and denied defendant's motion to

reconsider.  That day, defendant moved for a turnover of the sale

surplus to her, which the court granted.  Defendant timely appeals.

	Defendant contends that the court erred in denying her motion

to dismiss for lack of jurisdiction.  She argues that the special

process server's return was facially defective because it did not

state that he explained to her daughter what the summons was, and

did not clearly state that copies of the summons and complaint were

mailed to defendant.

	Plaintiff responds that the return of summons was sufficient. 

Alternatively, plaintiff contends that defendant is estopped to

question the court's jurisdiction to order the foreclosure and sale

because she accepted the benefits of those orders by accepting the

sale surplus.  Plaintiff also contends that defendant waived her

right to challenge the court's orders by failing to obtain a stay

and allowing the third-party purchaser to take possession of the

property.  Because we agree with plaintiff's second contention, we affirm the circuit court's judgment without reaching the parties'

other arguments.

	It is well settled that, where a party accepts the benefits of a decree, he or she cannot "prosecute error to reverse it."  Corwin v. Shoup, 76 Ill. 246, 249 (1875); see also Trapp v. Off, 194 Ill. 287, 302 (1901); Morgan v. Ladd, 27 Ill. 414, 415 (1845).  A party cannot, by his voluntary act, invite the court to exercise its

jurisdiction and at the same time deny that jurisdiction exists.  Supreme Hive Ladies of the Maccabees of the World v. Harrington, 227 Ill. 511, 525 (1907).  Although those cases do not involve

challenges to the courts' jurisdiction, that distinction does not

help defendant here.

	Normally, a general appearance does not submit a party to the

court's jurisdiction retroactively.  Christiansen v. Saylor, 297 Ill. App. 3d 719, 723 (1998).  However, in some cases, a general

appearance may validate a prior judgment that was void for lack of

jurisdiction.  In re Marriage of Verdung, 126 Ill. 2d 542, 547-48 (1989); 6 C.J.S. Appearances §48, at 82 (1975).  Thus, in Lord v. Hulbert, 12 Ill. 2d 83 (1957), a party who did not appear in an earlier partition suit but subsequently petitioned the court to

terminate a trust created during that earlier proceeding and pay

him the proceeds could not challenge the prior judgment.  Lord, 12 Ill. 2d at 86.

	In Rock Island Bank & Trust Co. v. Stauduhar, 59 Ill. App. 3d 892, 902 (1978), a party who never had notice of a prior suit but

later accepted and recorded a release of the judgment entered in

that case was held to have ratified the judgment.  In Bradshaw v. Pellican, 152 Ill. App. 3d 253 (1987), defendant filed a special and limited appearance to contest jurisdiction in a paternity

action when plaintiff petitioned for past-due child support. 

However, defendant also entered into a settlement agreement that

allowed him to pay the arrearage in installments rather than face

a contempt citation.  This court held that defendant had recognized

the validity of the earlier proceedings and had invoked the court's

jurisdiction for his benefit.  Bradshaw, 152 Ill. App. 3d at 256.

	Here, defendant cannot assert an interest in the sale proceeds

and on appeal claim that the court had no jurisdiction to enter the

orders.  See Verdung, 126 Ill. 2d at 552.  After defendant's motion to dismiss was denied, she moved the court to order plaintiff to

turn over to her the surplus from the sale.  The court granted the

motion and defendant accepted the surplus proceeds.  Defendant

cannot accept the benefits of the trial court's orders and at the

same time argue to this court that the trial court lacked

jurisdiction to make them.  Put another way, defendant ratified the

earlier orders by accepting their benefits.

	Defendant is estopped to challenge the orders allegedly

entered without jurisdiction.  Because of our resolution of this

issue, we need not decide the merits of defendant's jurisdictional

argument.  

	The judgment of the circuit court of Du Page County is

affirmed.

	Affirmed.

     CALLUM and GILLERAN JOHNSON, JJ., concurring.