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August 29, 2001

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JUSTICE O'MALLEY delivered the opinion of the court:

Defendants, A. Norman Otto and Allen C. Otto, appeal from thetrial court's dismissal of their petition to set aside and vacatejudgment and the denial of their motion for rehearing. We vacatethe 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 wasfiled 31 days after the entry of the order from which this appealis taken. However, the thirtieth day after the entry of the orderfell on a Sunday. The notice of appeal was filed the next day. Therefore, the notice of appeal was timely filed, and we deny thebank's motion to dismiss.

The bank also seeks the dismissal of the appeal becausedefendants failed to provide in their brief a jurisdictional basisfor this court to hear this appeal, as required by Supreme CourtRule 341(e)(4)(ii) (177 Ill. 2d R. 341(e)(4)(ii)) (miscited by thebank as Supreme Court Rule 341(e)(3)), and a statement regardingthe standard of review for each issue, as required by Supreme CourtRule 341(e)(3) (177 Ill. 2d R. 341(e)(3)). We note that defendantshave provided a statement of jurisdiction and find that it issufficient. However, defendants have in fact failed to include anystatement regarding the standard of review. Defendants similarlyfailed to provide a statement of the standard of review in theirbrief in a prior appeal arising out of this litigation. Thisfailure to follow the supreme court rules was brought todefendants' attention. See Community Bank v. Otto, No. 2--97--1298, slip order at 4 (1998) (unpublished order under Supreme CourtRule 23). We admonish defendants and their counsel that compliancewith the supreme court rules is not a matter of convenience. Havinghad the same deficiency brought to their attention previously inthis case, defendants' lack of compliance with the rules should beinexcusable. Nevertheless, defendants' brief is not so deficientas to prevent our review of the appeal. See In re Marriage ofCorkey, 269 Ill. App. 3d 392, 396 (1995). Therefore, we will notdismiss the appeal.

On November 24, 1997, the trial court entered judgment in theamount of $313,555.53 in favor of the bank and against the estateof August C. Otto, deceased. This judgment was affirmed in No. 2--97--1298. In December 1997, the bank filed a citation to discoverassets against defendants as co-administrators of the estate ofAugust C. Otto and as transferees of certain property that had beentransferred in 1994. While the citation was ordered to issue, noservice of the citation was obtained.

In April 1998, the bank filed a verified petition for theissuance 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 ahearing, the trial court entered an order on March 19, 1999, inwhich the court found that the 1994 property transfer had been afraudulent conveyance. The court ordered the transfer of theproperty to the Estate of August C. Otto and allowed the bank tolevy on the property, which was subsequently sold at a sheriff'ssale.

On June 16, 1999, defendants filed a petition pursuant tosection 2--1401 of the Civil Practice Law (735 ILCS 5/2--1401 (West1998)) to set aside and vacate the March 19 order. The bank fileda motion to dismiss that was granted on July 27. Defendants thenfiled on August 19 a motion to vacate the order dismissing theirpetition. The record is unclear as to what happened next; however,on September 24, the court entered an order again dismissing thesection 2--1401 motion as "not being in compliance" with section 2--1401(a) and taking under advisement "the motion to Declare theJudgment Void." On December 10, the court ruled that the judgmentorder was not void and denied the motion to vacate. This appealfollowed.

Defendants first contend that the trial court erred indetermining that the March 19 judgment was not void. A void orderor judgment can be attacked at any time or in any court, in eithera direct or a collateral proceeding. JoJan Corp. v. Brent, 307Ill. App. 3d 496, 502 (1999). A judgment is void only where thereis a total lack of jurisdiction in the court that entered thejudgment, either as to subject matter or as to the parties. In reMarriage of Mitchell, 181 Ill. 2d 169, 174 (1998). To support acollateral attack, the lack of jurisdiction must appear on the faceof the record. JoJan, 307 Ill. App. 3d at 505. If the record doesnot contain evidence that the court's action is a nullity, or, ifit recites jurisdictional facts that are untrue, the judgment isvoidable and must be attacked directly for the purpose ofestablishing with other evidence the untruthfulness of the record. In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 201 (1993). Ajudgment is merely voidable if it is entered erroneously by a courthaving jurisdiction; such a judgment is not subject to collateralattack. Mitchell, 181 Ill. 2d at 174. Once a court hasjurisdiction, an order will not be rendered void because of anerror or impropriety in the court's determination of law, and acourt may not lose jurisdiction merely because it makes a mistakein determining the facts, the law or both. Mitchell, 181 Ill. 2dat 174-75.

Subject matter jurisdiction is the court's power both toadjudicate the general question involved and to grant theparticular relief requested. In re Estate of Gebis, 186 Ill. 2d188, 192 (1999). Here, the bank petitioned the court, pursuant tothe Probate Act, to issue a citation "ordering A. Norman Otto andAllen C. Otto to convey the real property *** to the Estate ofAugust C. Otto, Deceased as Grantee." However, the mere invocationof the Probate Act is not sufficient to confer jurisdiction on thetrial court. Our review of the record reveals no pleading relatedto the opening of a decedent's estate in August C. Otto's name, theissuance of letters testamentary or of administration for such anestate, or the admission of August C. Otto's will to probate.Indeed, the bank's petition itself alleged that "no Probate of theEstate of August C. Otto has been undertaken." We are unaware ofany reason whereby the Probate Act can be used as a basis forjurisdiction when no estate has been opened. See Gebis, 186 Ill.2d at 196 (where no decedent's estate existed, the trial courtlacked jurisdiction to adjudicate claim that should have beenbrought against it).

The bank argues that the June 1996 appointment of defendantsas special co-administrators in the underlying case is evidence ofthe existence of the estate. However, a special administratorappointed pursuant to the Civil Practice Law for the purpose ofdefending an action is not equivalent to an administrator appointedpursuant to the Probate Act. Hannah v. Gilbert, 207 Ill. App. 3d87, 90 (1990). Such a special administrator is empowered only todefend the action in which he is appointed; no letters of office toadminister the estate issue. Hannah, 207 Ill. App. 3d at 90. While defendants were appointed as special administrators in theaction 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 beyonddefending the underlying action.

Until a decedent's will is admitted to probate or letters ofadministration issue, a trial court lacks any authority toadjudicate a creditor's claim against a decedent and thus a claim cannot be filed against a decedent's estate until such an estatehas been opened. Gebis, 186 Ill. 2d at 196. In fact, the trialcourt's only choice is to dismiss such a creditor's claim for lackof subject matter jurisdiction, and any other order by the court isvoid and we must vacate it. Gebis, 186 Ill. 2d at 197. Of course,the creditors of a deceased may petition the circuit court eitherfor 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(West1996)).

As Gebis pointed out, at first such a decision may appearunduly technical, but the consequences of a contrary result aresignificant. Article 18 of the Probate Act establishes detailedprocedures for the adjudication of claims against a decedent'sestate. Among these procedures is a schedule setting forth thepriority in which claims against a decedent's estate must be paid. The failure to follow the statutory scheme set forth in the ProbateAct could circumvent the priority schedule established in the Act.

The record shows no evidence of the existence of an estate ofAugust C. Otto, deceased. There being no such entity, the ProbateAct did not confer jurisdiction on the trial court to adjudicatethe bank's petition. Therefore, the March 19, 1999, order was voidand must be vacated.

Because of our resolution of this issue, we need not addressdefendants' other contentions.

For these reasons, the judgment of the circuit court ofKendall County is vacated.

Vacated.

GEIGER and BYRNE, JJ., concur.