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FIRST DIVISION

September 4, 2001

No. 1-00-1309

In an action for demolition, an owner of the building failedto appear for trial, and the court entered the judgment sought. The owner argues that the record does not show proper service ofsummons on her. We hold that because the record includes noevidence that the clerk of court ever signed or sealed a summonsto the owner, the trial court lacked jurisdiction to enterjudgment against the owner who failed to appear.

On September 10, 1999, the City of Chicago (the City) fileda complaint for demolition of a building in Chicago. Thecomplaint listed the property's owners, Nathan and Marie Yellen,amongst the defendants. Nathan appeared pro se for trial, butMarie did not appear. The trial court authorized the demolitionby order dated March 24, 2000.

An attorney later filed a motion for reconsideration of thedemolition order to permit the Yellens to file an acceptable planfor rehabilitation of the property. Before the hearing on themotion the attorney filed an appearance on behalf of Nathan andMarie. The attorney argued that Marie never received properservice of process. The court refused to reconsider thedemolition order.

After the Yellens filed their notice of appeal, the Cityasked the trial court for leave to supplement the record onappeal with the summons to Marie and the return of service forthat summons. The Yellens objected to the supplement on groundsthat the trial court had not seen this evidence prior to rulingon the motion for reconsideration. The trial court granted theCity leave to supplement the record.

On appeal, the Yellens argue first that the trial courterred by allowing supplementation of the record. Supreme CourtRule 329 permits supplementation of the record "to present fullyand fairly the questions involved." 134 Ill. 2d R. 329. Generally, parties may supplement the record on appeal only withevidence actually presented to the trial court before judgment(see In re Estate of Albergo, 275 Ill. App. 3d 439, 444, 656N.E.2d 97 (1995)), because in most cases this court mustdetermine only whether the trial court erred in its resolution ofquestions on the basis of the evidence and arguments before it.

But here we must determine whether the trial court hadpersonal jurisdiction over the parties. The appellate courtsimilarly needed to decide a jurisdictional issue in Marin v.Grimm, 37 Ill. App. 3d 979, 981, 347 N.E.2d 418 (1976). Althoughthe original record in that case did not include the return ofservice, the appellate court permitted the plaintiff to includeit in a supplemental record. And in Marion Metal & Roofing Co.v. Wood, 243 Ill. App. 3d 890, 893, 612 N.E.2d 1049 (1993), theappellate court permitted supplementation of the record withletters never shown to the trial court, because the lettershelped resolve the question of whether the defendant had actualnotice of an order.

Like the courts in Marin and Marion Metal, we find thesupplement helps resolve the issue of whether the trial court hadjurisdiction over the parties. We find no error in the orderpermitting supplementation here.

The supplement includes a police officer's affidavit,stating that he left a copy of the summons and complaint withNathan on September 15, 1999, at his home address. He swore thathe left a second summons and complaint, addressed to Marie, withNathan at the same time. The officer swore that he mailed Mariea copy of the summons and complaint, addressed to her home. Thecopy of the summons included in the supplemental record bearsneither the seal nor the signature of the clerk of court. Mariecontends that the evidence is insufficient to show that the courtobtained personal jurisdiction over her.

The City responds first that Marie waived the issue byfiling a general appearance in the trial court without firstraising the jurisdictional issue. But she had not filed herappearance before the trial court entered the order fordemolition. If the court lacked jurisdiction over her at thattime, her subsequent appearance would not retroactively validatethe order. See Sullivan v. Bach, 100 Ill. App. 3d 1135, 1142,427 N.E.2d 645 (1981); J.C. Penney Co. v. West, 114 Ill. App. 3d644, 646-47, 449 N.E.2d 188 (1983). She has not waived objectionto the lack of personal jurisdiction at the time the courtentered the demolition order.

Because the court entered the demolition order against aparty who had not appeared, the order against Marie was, ineffect, a default judgment. See Columbus Savings & Loan Ass'n v.Century Title Co., 45 Ill. App. 3d 550, 553, 359 N.E.2d 1151(1977) (judgment entered for failure to answer is a defaultjudgment, even if the trial court called it a judgment on thepleadings). Section 2-1301(d) of the Civil Practice Law (735ILCS 5/2-1301(d) (West 1998)) establishes that a default judgmentis appropriate relief for a failure to appear, and the court'sdecision to hold a hearing prior to granting the relief does notchange its character as a default judgment.

"'[A] court can only acquire jurisdiction of a party, wherethere is no appearance, by the service of process in the mannerprescribed by law.'" Miller v. Town of Cicero, 225 Ill. App. 3d105, 110, 590 N.E.2d 490, quoting Amy v. City of Watertown, 130U.S. 301, 317, 32 L. Ed. 946, 952, 9 S. Ct. 530, 536 (1889);(1992); see Gocheff v. Breeding, 53 Ill. App. 3d 608, 609-10, 368N.E.2d 982 (1977); Schorsch v. Fireside Chrysler-Plymouth, Mazda,Inc., 172 Ill. App. 3d 993, 1001, 527 N.E.2d 693 (1988). "Whereservice of process is not carried out in accordance with themanner provided by law it is invalid, no jurisdiction over theperson of the defendant is acquired, and a default judgmentrendered against the defendant is void." Gocheff, 53 Ill. App.3d at 609.

When documents in the court file evidence full compliancewith procedures needed to establish the court's jurisdiction, thedefendant has the burden of impeaching the documents by clear andconvincing evidence. Paul v. Ware, 258 Ill. App. 3d 614, 617,630 N.E.2d 955 (1994). But the plaintiff bears the burden ofpresenting a record sufficient to establish the court'sjurisdiction before the court enters a default judgment. Weagree with Michigan's supreme court that "unless the files of thecourt disclose proper proof of service of process a defaultentered is irregular." Dades v. Central Mutual Auto InsuranceCo., 263 Mich. 260, 262, 248 N.W. 616, 616 (1933). As a Texascourt explained:

"Before a default judgment is properly rendered,the record must reflect that the trial court hasjurisdiction and that the case is ripe for judgment.[Citation.] When determining whether the case is ripefor judgment, the trial judge has a mandatory duty todetermine that the defendant was duly served withcitation and has no answer on file. [Citation.] Thefailure of the record to show strict compliance withthe rules governing issuance, service, and return ofcitation will generally void attempted service andrequire the default judgment to be set aside." NuecesCounty Housing Assistance, Inc. v. M&M Resources Corp.,806 S.W.2d 948, 949 (Tex. App., 1991).

See also Howard v. Preston, 30 Wis. 2d 663, 667-69, 142 N.W.2d178, 181-82 (1966). Our supreme court has similarly held thatthe trial court lacks jurisdiction over parties who fail toappear unless the record includes evidence of legally sufficientservice of process. Spring Creek Drainage District v.Commissioners of Highways, 238 Ill. 521, 524-26, 87 N.E. 394(1909); see State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294,310-11, 497 N.E.2d 1156 (1986).

With the service of a summons, the court obtainsjurisdiction over a person, allowing the court to determine aclaim against that person. Whitley v. Lutheran Hospital, 73 Ill.App. 3d 763, 766, 392 N.E.2d 729 (1979). The summons notifiesthe defendant of the pending litigation and directs him to appearand defend. Nicholas v. Inglimo, 96 Ill. App. 3d 695, 699, 421N.E.2d 1014 (1981). But it cannot have effect as an order unlessit issues from the appropriate court. The signature and seal ofthe clerk of court demonstrate that the summons issues from acourt. "A summons not signed by the clerk of the court whichissues it is no summons" (Ohio Millers Mutual Insurance Co. v.Inter-Insurance Exchange of the Illinois Automobile Club, 367Ill. 44, 56, 10 N.E.2d 393 (1937)), because it is not issued byany court.

The record here lacks evidence of statutorily sufficientservice of process. The only copy in the record of a purportedsummons has neither the seal nor the signature of the clerk ofcourt, as required by law. 166 Ill. 2d R. 101(a). Thus, therecord shows no evidence that any court issued the summons toMarie. The police officer's return of service constitutesevidence that the officer gave Nathan a piece of paper bearingthe legend "Summons" - but the officer's affidavit mentionsneither a seal nor a signature of the clerk of court, and thecopy of the summons includes neither.

The City asks us to infer, from Nathan's failure to producethe summons he received, that the summons actually delivered borethe clerk's signature and seal. We find that Nathan's failurecannot meet the City's burden of presenting a record sufficientto show that the court has jurisdiction. Absent service ofsummons, the court lacked jurisdiction over Marie, and the recordhere shows no evidence of the issuance of a summons.

Because the record does not establish the trial court'sjurisdiction over Marie, the default judgment against her,including the order for demolition, must be vacated. The causeis remanded for further proceedings in accord with this opinion.

Vacated and remanded.

COHEN, P.J., and O'MARA FROSSARD, J., concur.