dissenting:
It should be clear at the outset that the only parties to this appeal are the beneficiaries. The Bank of Ravenswood, as trustee, is not a party. The beneficiaries raise two issues directed towards the question of personal jurisdiction. First, they contend that the trial court lacked jurisdiction over the beneficiaries because no summons was ever served on them. Second, they assert that as the original judgment against the Bank of Ravenswood is void because the beneficiaries were not joined as necessary parties, the original judgment cannot be amended to add the beneficiaries.
On the first issue, I believe the beneficiaries have submitted themselves to the jurisdiction of the court. As the majority points out, after the judgment was entered against the Bank of Ravenswood, the plaintiff discovered that the property had been transferred to Commercial National Bank as trustee. The plaintiff notified Commercial and the beneficiaries that it would ask the trial court for leave to amend the complaint to name them as parties and, further, to amend the judgment to name Commercial and the beneficiaries as judgment debtors. The beneficiaries and Commercial filed a special and limited appearance solely for the purpose of objecting to the jurisdiction of the court over them.
However, in the trial court the beneficiaries did not argue a lack of personal jurisdiction on the basis that no summons was issued as they do here. Rather, they argued in the lower court that the trial court did not have jurisdiction over the Bank of Ravenswood because the beneficiaries were not joined as necessary parties. They also argued that the trial court was in error in entering a judgment for punitive damages against the Bank of Ravenswood. Neither of these arguments concern the court’s jurisdiction over the beneficiaries. Consequently, in the absence of a challenge to the court’s jurisdiction over the beneficiaries, the beneficiaries’ actions in the trial court in effect recognized the court’s personal jurisdiction over them. (Hutchinson v. Brotman-Sherman Theatres, Inc. (1981), 94 Ill. App. 3d 1066, 1075, 419 N.E.2d 530.) The trial court reached the same conclusion and found the special and limited appearance constituted a general appearance.
In its second argument on appeal attacking the jurisdiction of the court, the beneficiaries contend that as the judgment against the Bank of Ravenswood is void, the void judgment cannot be amended to add the beneficiaries as a basis for entering judgment against them. The majority quite accurately points out that the failure to join the beneficiaries did not render the judgment against the Bank of Ravenswood void. Therefore, as the judgment is not void, the premise of the beneficiaries’ second argument fails and, ultimately, the basis for this appeal. If the court was in error in entering judgment against the Bank of Ravenswood because of the absence of the beneficiaries from the action, the judgment was merely rendered voidable, and the proper procedure would have been for the Bank of Ravenswood to file a direct appeal. Consequently, the judgment entered against the Bank of Ravenswood is not subject to the collateral attack by the beneficiaries in the instant action. See Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159, 165, 449 N.E.2d 812.
Furthermore, I disagree with the majority that the beneficiaries were necessary parties in the action against the Bank of Ravenswood. The courts have previously found that beneficiaries are not necessary parties in a tax sale proceeding (Petition of Lois, Inc. v. Halvorsen (1971), 5 Ill. App. 3d 149, 275 N.E.2d 172) and in condemnation proceedings (Department of Conservation v. Franzen (1976), 43 Ill. App. 3d 374, 377-78, 356 N.E.2d 1245). These proceedings are indistinguishable from the instant case.
Additionally, even if the beneficiaries should have been joined as necessary parties, no prejudice to their rights resulted, as the beneficiaries had actual notice of the proceedings against the Bank of Ravenswood. The Bank of Ravenswood notified the beneficiaries that it had been served with a summons and complaint which they forwarded to the beneficiaries. They also advised them that the Bank of Ravenswood would take no action whatsoever in the matter and recommended that they discuss the matter with their attorney. After that, an attorney appeared on behalf of the Bank of Ravenswood as trustee in this matter and proceeded with this action even if after the property which was the subject of the trust was transferred to another bank.
For these reasons, I respectfully dissent. I would affirm this judgment.