) ) EUGENE W. ALPERN, ) Appellate Ct. 98-2563 Petitioner-Appellant ) ) v. ) ) Trial Ct. 91-D-5122 PHYLLIS ALPERN, ) Respondent-Appellee ) Judge Veronica Mathein ) presiding )
NOW COMES the Appellant, EUGENE ALPERN ("EUGENE") and moves this court to reconsider the void order entered by this court on December 23, 1998.
1. The Appellate Courts are courts of limited jurisdiction, and must comply with the rules established for courts involved in limited jurisdiction proceedings. There is no presumption of subject-matter jurisdiction in courts of limited jurisdiction.
The jurisdiction of this court is found in the record of the trial court. State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497 N.E.2d 1156 (1986); Keal v. Rhydderick, 317 Ill. 231 (1925) What is clear from the record of the trial court is that no valid Petition for Dissolution of Marriage exists in the record of the lower court. What is clear from the rulings of the Illinois Supreme Court is that without a valid Petition in the record of the trial court, no subject-matter jurisdiction was ever conferred upon the trial court or upon this reviewing court. Thill, supra; Brown v. VanKeuren, 340 Ill. 118, 122 (1930).
Without subject-matter jurisdiction, this court can only proceed under its inherent power to vacate void judgments. It has no other legal authority. People v. Magnus, 262 Ill.App.3d 362, 633 N.E.2d 869 872 (1st Dist. 1994); People v. Childs, 278 Ill.App.3d 65, 663 N.E.2d 161 (1996); Irving v. Rodriquez, 27 Ill.App.2d 75, 169 N.E.2d 145 (1960); Liberty Nat. Bank of Chicago v. Vance, 3 Ill.App.2d 1, 120 N.E.2d 349 (1st Dist. 1954).
2. Neither the Illinois Constitution, the Illinois Legislature, nor the Illinois Supreme Court, grants any authority for the Appellate Court to violate Illinois law.
3. Supreme Court Rules are binding on both the litigants and the courts. Bright v. Dicke, 166 Ill.2d 204, 210, 652 N.E.2d 275, 277-78 (1995) ("The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written."); North Avenue Building & Loan Ass'n v. Huber, 286 Ill. 375, 383 (1918) ("The rules of court have the same binding force upon parties, as well as against the court, as have statutes.").
By this court's failure to comply with the Supreme Court Rules, as it pertains to an extension of time to file an appellee brief, it has attacked the decisions of the Illinois Supreme Court. This court does not have any lawful authority to act in violation of Supreme Court Rules. Since it does not have the lawful authority to counter the Illinois Supreme Court, the order of December 23, 1998 was issued without lawful authority. The order is void, and should be vacated as required by law. Higher courts have ruled that judges do not have any discretion not to vacate a void order.
4. Justice Calvin C. Campbell acted without lawful authority in granting any extension of time to file an appellee brief. Justice Campbell, as well as all judges, have a duty to know and to comply with the law. Code of Judicial Conduct Rule (62(A)).
The law in Illinois is that an appellee brief must be filed within 35 days after the appellate brief is due, except for four specific reasons. Supreme Court Rule 343(a). None of the exemptions apply to the current matter.
EUGENE suggests that the December 23, 1998 order is void as it violates the established law in Illinois.
EUGENE suggests that the appellee brief, soon presumably to be filed, violates Illinois law and should be dismissed as being in default with Supreme Court Rule 343(a).
5. Appellee requested additional time to review a non-existent supplemental record. There is no supplemental record to review.
6. The December 23, 1998 order was issued in violation of the Constitution of the State of Illinois.
Appellee falsely alleges that the appellant will not be prejudiced by the delay. The appellee does not state how the appellant will not be prejudiced, nor does the appellee make such claim in her affidavit.
EUGENE states that any delay will prejudice him.
Justice delayed is justice denied. Article I, Section 12 of the Constitution of the State of Illinois states:
"Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly." [Emphasis added].
EUGENE's person, privacy, property and reputation have been prejudiced by this court granting any extension of time for the appellee to file her brief contrary to law.
Further EUGENE states that the introduction of any documents at this late date, after EUGENE has filed his appellate brief, would, without any question, prejudice EUGENE.
The function of the appellee is to respond to the issues presented in the appellant's brief and which have been found within the record on appeal. The Clerk of the Circuit Court of Cook County has certified that the record of the case that was transfered to this Appellate Court is complete. Therefore there is no supplemental record to review.
The appellee did not state any testimony or document that was omitted from the record of the case/record on appeal. The appellee has made unsubstantiated claims of a supplemental record.
7. Justice Campbell should issue orders based on the Rule of Law. Justice Campbell should reconsider his December 23, 1998 order under the Rule of Law.
8. There is no time limit within which to challenge orders issued without jurisdiction.
9. The order of December 23, 1998 signed by Justice Calvin C. Campbell did not contain any findings of fact from within the record of this case on which to find that it had jurisdiction.
This court has a duty, and has no discretion not, to fully comply with the law as established by the Illinois Supreme Court. Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d 375 (1943); Armstrong v. Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921). An order issued not in compliance with the law is void.
An order issued by a court of limited jurisdiction must contain the findings of fact of the court that it has jurisdiction. In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977) ("in a special statutory proceeding an order must contain the jurisdictional findings prescribed by statute."); Zook v. Spannaus, 34 Ill.2d 612, 217 N.E.2d 789 (1966).
10. EUGENE has not requested the Court to declare the Judgment for Dissolution of Marriage entered in the 91-D-5122 trial court void. The four judges, by their inspection of the record of that case and their finding that no valid Petition for Dissolution of Marriage exists in the record of the case, have, under law, found that the record of the case on which the dissolution judgment was based did not contain all the required elements for the court to enter a valid judgment.
EUGENE has, by his filing his 735 ILCS 5/2-1401(f) Petition, asked the Court to follow the law and to vacate the already found void judgment.
11. Courts have ruled that a court has a duty to vacate void judgments. People v. Childs, 278 Ill.App.3d 65, 663 N.E.2d 161 (1996) ("The duty to vacate a void judgment is based on the inherent power of a court to expunge from its records void acts of which it has knowledge."); People v. Magnus, 262 Ill.App.3d 362, 633 N.E.2d 869, 872 (1st Dist. 1994) ("The duty to vacate a void judgment is based on the inherent power of the court to expunge from its records void acts of which it has knowledge.") ("issue was raised sua sponte by the court in fulfillment of our duty to vacate void judgments."); Irving v. Rodriquez, 27 Ill.App.2d 75, 169 N.E.2d 145 (1960).
A void order is void even before its reversal or vacatur. At no time did the lower court have any jurisdiction since there was no Petition filed to confer any jurisdiction upon it.
WHEREFORE, the Appellant prays that this court will:
A. reconsider its December 23, 1998 order,
B. deny the appellee's request for any extension of time,
C. adjudicate the appellee to be in default,
D. declare the 91-D-5122 trial court's orders void as the trial court did have the requisite documents that conferred jurisdiction upon the court.
Respectfully submitted, ______________________ Eugene Alpern Eugene Alpern P.O. Box 672 Morton Grove, IL 60053
) ) EUGENE W. ALPERN, ) Appellate Ct. 98-2563 Petitioner-Appellant ) ) v. ) ) Trial Ct. 91-D-5122 PHYLLIS ALPERN, ) Respondent-Appellee ) Judge Veronica Mathein ) presiding )
I, Eugene Alpern, as my affidavit, certify the following to be true and correct:
1. That the attached Motion To Reconsider the Order of December 23, 1998 is true, correct, and complete.
2. That the record of the 91-D-5122 trial court does not confer jurisdiction on the trial court.
3. That four judges inspected the record of the 91-D-5122 trial court and have reported that no Petition for Dissolution of Marriage exists within the record of that case.
4. That EUGENE has repeatedly demanded that Phyllis Alpern, the Petitioner in the 91-D-5122 trial court prove that the 91-D-5122 court held jurisdiction.
5. That at no time did Phyllis Alpern prove that the 91-D-5122 trial court held jurisdiction.
6. That EUGENE denies that the 91-D-5122 trial court held jurisdiction at any time.
7. That the Supreme Court has repeatedly ruled that when there is no Complaint/Petition in the record of the case, the court is without jurisdiction.
8. That without jurisdiction, all orders entered by that court are void.
9. That attorney Theodora Gordon never filed a written Notice of Appearance in case no. 91-D-5122 during any time that the 91-D-5122 case was before any court.
FURTHER AFFIANT SAYETH NAUGHT.
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