dissenting:
Once our jurisdiction has been invoked, as the majority finds that it has been in this case, I believe that we may, and should, address the trial court’s jurisdiction. Because I believe that the trial court lacked jurisdiction to enter the attachment underlying the motion for a stay which is the subject of this appeal, I must respectfully dissent.
The majority is correct in its statement that, on review of an interlocutory order pursuant to Supreme Court Rule 307 (188 Ill. 2d R. 307)), the merits of the underlying case are not at issue. Scott v. Assurance Co. of America, 253 Ill. App. 3d 813, 814, 625 N.E.2d 439 (1993). However, the majority’s reliance upon this general rule in declining to address the question of the trial court’s jurisdiction in this matter is misplaced. First, contrary to the majority’s assertion, the issue of a court’s jurisdiction over the person of a party does not go to the merits of the controversy. Second, to the extent necessary, an appellate court may consider substantive issues when reviewing the propriety of an interlocutory order in order to determine whether the trial court acted within its authority. In re Lawrence M., 172 Ill. 2d 523, 526, 670 N.E.2d 710 (1996). Third, an order entered by a court which fails to acquire jurisdiction over a party may be attacked and vacated at any time or in any court. Morey Fish Co. v. Rymer Foods, Inc., 158 Ill. 2d 179, 186-87, 632 N.E.2d 1020 (1994). Fourth, an appellate court is obligated not only to examine its own jurisdiction, but also to take notice of matters that go to the jurisdiction of the circuit court. See Eastern v. Canty, 75 Ill. 2d 566, 570, 389 N.E.2d 1160 (1979).
Supreme Court Rule 277 provides that a supplementary proceeding is commenced by service of a citation upon the party against whom it is brought. 134 Ill. 2d R. 277(b). The citation is required to be served and returned “in the manner provided by rule for service, otherwise than by publication, of a notice of additional relief upon a party in default.” 134 Ill. 2d R. 277(c). Supreme Court Rule 105, which provides for service of a notice of additional relief upon a party in default, sets forth two means by which a citation may be served; namely: (1) “any method provided by law for service of summons, either within or without this State”; and (2) “prepaid certified or registered mail addressed to the party, return receipt requested, showing to whom delivered and the date and address of delivery.” 134 Ill. 2d R. 105.
Absent waiver of service, a court can only acquire jurisdiction over the person of a party by service of process in the manner directed by statute or supreme court rule. See State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308, 497 N.E.2d 1156 (1986). In this case, Joseph S. Beale was not served with the citation by any means authorized by Rule 105, nor did he waive that service. Rather, the citation was served upon his then former attorneys. As a consequence, I believe that the circuit court lacked jurisdiction to enter the attachment which was the subject of Beale’s motion for a stay. Unlike the majority, I do not believe that the propriety of the trial court’s denial of Beale’s motion for stay can be addressed without first addressing the trial court’s authority to enter the underlying attachment.
Based on the foregoing analysis, I would reverse the circuit court’s order denying Beale’s motion for a stay and vacate the underlying attachment.