Trolard v. Bohnenstiehl , 95 Ill. App. 3d 1118 ( 1981 )

Mr. JUSTICE HARRISON

delivered the opinion of the court:

Respondent, Omer Trolard, seeks to appeal a judgment entered November 21, 1979, in the circuit court of Madison County, Illinois. The judgment in favor of petitioners Marvin, Loretta and Gregory Bohnenstiehl was entered pursuant to their motion under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) which sought to vacate an October 18, 1978, order of the same court. The October order authorized the issuance of a deed in favor of the respondent for certain real property located in Granite City, Illinois, which Trolard had acquired an interest in following its sale for collection of delinquent taxes. Respondent wishes to determine issues concerning fraud and diligent inquiry regarding notice to the Bohnenstiehls of proceedings for the issuance of the tax deed. (See generally Ill. Rev. Stat. 1977, ch. 120, pars. 747, 744.) Because we lack jurisdiction to review the judgment of November 21 we are unable to adjudicate the matters presented. Appeal is dismissed.

Appellees initiated this action to vacate the October order on February 9,1979. Section 72 is designed to be the principal mechanism for relief from judgments after 30 days from entry. As is stated in section 72(2), the petition is considered to be a wholly new action independent of the proceedings from which relief is sought, and it is a narrow exception to the rule that post-trial relief must be sought within 30 days. The November judgment granted relief upon finding that the notice given to the owners was inadequate under the facts presented and upon finding fraud in the contents of Trolard’s May 11,1978, petition for issuance of the deed. Respondent’s notice of appeal from the November 21 judgment was filed May 23, 1980, approximately six months after the date of judgment.

In the interim between November 1979 and May 1980 Trolard was granted an extension of time in which to present a post-trial motion under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3) regarding the section 72 proceeding. The motion finally submitted was denied following a hearing on April 24, 1980.

Timely notice of appeal in this court must be filed within 30 days of the date on which the circuit court judgment becomes final. (Ill. Rev. Stat. 1979, ch. 110A, par. 303(a).) The filing of the notice of appeal is the sole jurisdictional act which initiates review. (Ill. Rev. Stat. 1979, ch. 110A, par. 301.) Questions of jurisdiction must be raised by the reviewing court sua sponte where, as here, the parties have made no reference to its presence or absence. And, where the authority to recognize a cause for adjudication is lacking it must decline to proceed. (Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App. 3d 224, 227, 332 N.E.2d 553.) Supreme Court Rule 304(b) (3) makes a judgment granting any of the relief prayed for in a petition under section 72 final, and therefore appealable. Ill. Rev. Stat. 1979, ch. 110A, par. 304(b)(3), derived from Ill. Rev. Stat. 1967, ch. 110, par. 72(6).

The appellate court has held on numerous occasions that motions to reconsider rulings on section 72 petitions are not to be used in order to toll the period allowed for the prosecution of a timely appeal. (E.g., City Wide Carpet, Inc., v. John (1980), 83 Ill. App. 3d 538, 542, 404 N.E.2d 465; Dempster Plaza State Bank v. American National Bank & Trust Co. (1980), 83 Ill. App. 3d 870, 873, 404 N.E.2d 303; City Auto Paint & Supply, Inc. v. Brandis (1979), 73 Ill. App. 3d 863, 866, 392 N.E.2d 703; contra, Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 731-32, 398 N.E.2d 972. See also Wells v. Kern (1975), 25 Ill. App. 3d 93, 99, 322 N.E.2d 496.) We are bound, therefore, by precedent to dismiss the present appeal for want of jurisdiction because of the failure to file a timely notice of appeal.

Appeal dismissed.

JONES, J., concurs.