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Cook v. Burnette6/26/2003
provision:
" he petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years." 735 ILCS 5/2-1401(c) (West 1998).
Further, a section 2-1401 petition must set forth a meritorious defense to the original action as well as the petitioner's due diligence in both presenting the defense and the filing of the petition. See Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). However, plaintiff claims, a trial court lacks discretion to even consider a section 2-1401 petition if the petition is not timely filed. Selvy v. Beigel, 309 Ill. App. 3d 768 (1999); Bank of Ravenswood v. Domino's Pizza, Inc., 269 Ill. App. 3d 714, 726 (1995) (a petition that is not filed within the two-year limitations period is barred from consideration on the merits); Crowell v. Bilandic, 81 Ill. 2d 422, 427-28 (1980) (the purpose of the two-year limitations period is to establish stability and finality in judicial proceedings).
In the present case, LaSalle filed its section 2-1401 petition on October 1, 1999, and its amended petition on December 17, 1999. Bank One filed its original petition on September 17, 1999, and its amended petition on November 22, 1999. Under Sarkissian, because all of these petitions sought to vacate the trial court's judgment as void, regardless of how they were labeled, they must be construed as section 2-1401 motions and subjected to the limitations of that section. Therefore, because none of these petitions were filed within two years of the June 26, 1997, judgment, plaintiff concludes that they are all time-barred.
Sarkissian, we note, dealt with a similar situation in which a party brought a motion to vacate a void judgment more than seven years after the default judgment was entered. The court noted that, until recently, it had not spoken on the issue of whether motions attacking void judgments could be construed as section 2-1401 motions.
Sarkissian, 201 Ill. 2d at 104. However, in noting that four members of the court in People v. Harvey, 196 Ill. 2d 444, 453 (2001), held that a motion to vacate a void judgment is properly designated a petition for relief from judgment under section 2-1401, the court then looked to the language of section 2-1401:
"Pursuant to Harvey, paragraph (f) of section 2-1401, which provides, 'Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief,' does not exclude, but merely differentiates, post-judgment petitions brought on voidness grounds from general section 2-1401 petitions. See 735 ILCS 5/1401(f) (West 2000). Under paragraph (f), the general rules pertaining to section 2-1401 petitions--that they must be filed within two years of the order or judgment, that the petitioner must allege a meritorious defense to the original action, and that the petitioner must show that the petition was brought with due diligence--do not apply. Petitions brought on voidness grounds need not be brought within the two-year time limitation. Further, the allegation that the judgment or order is void substitutes for and negates the need to allege a meritorious defense and due diligence. People v. Harvey, 196 Ill. 2d 444, 452 (2001) (McMorrow, J., specially concurring, joined by Freeman, J.)." Sarkissian, 201 Ill. 2d at 104.
The court then pointed out that paragraph (a) of section 2-1401 prohibits all other common law methods of attacking void judgments , and that nowhere else in the Code of Civil Procedure do
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