dissenting:
Appellants’ sole contention is that the October 6, 1969, order granting judgment is void since “section 675 of the Revenue Act requires that there be a period of time after the application for judgment during which those objectors who have previously paid their taxes under protest may file objections.” I agree with the majority opinion that this contention is without merit and would accordingly affirm.
Having thus disposed of appellants’ theory, however, the majority presents a theory of its own and determines that the trial court abused its discretion, not by failing to provide a period of time for filing objections prior to judgment, as authorized in People ex rel. Cain v. Illinois Central R.R. Co., 33 Ill.2d 240, but by failing to permit the filing of objections after the entry of final judgment. The reasoning leading to this determination is, in my judgment, somewhat curious. First, the majority finds that the judgment in question is equivalent to a default judgment and that the trial court could, in its discretion, set aside a default judgment pursuant to the provisions of section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 50(5).) Section 50(5) provides: “(5) The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.”
The majority then treats appellants’ motion for leave to file objections as a section 50(5) motion to set aside the judgment, although acknowledging that appellants apparently did not proceed on this theory. Next, the majority states that under section 50(5) “it is no longer necessary that such relief be sought on the precise grounds that there is a meritorious defense and a reasonable excuse for not having timely asserted such defense.” No cases are cited, however, for the position that it is no longer necessary that such relief be sought at all. The theory upon which appellants sought leave to file objections was almost certainly the same theory presented on appeal, i.e., the trial court was required by section 194, (par. 675) to provide a period of time for filing objections prior to judgment and in the absence of such period, the judgment was void. I simply cannot agree that a trial court abuses its discretion when it fails to grant relief which was not requested on a theory which was not presented.
Even if appellants had filed a timely motion to vacate the judgment pursuant to section 50(5), the denial of that motion would not, in my judgment, constitute an abuse of discretion under the circumstances of this case. “* * * [E]ven in cases under section 50(6) [now section 50(5)], as noted in Mieszkowski, the court, in exercising its discretion in determining whether a default judgment should be set aside in the furtherance of justice, must ascertain whether some reason exists for the failure to present the defense in apt time and whether some meritorious defense does exist.” (Gundersen v. Rainbow Cleaners and Laundry, Inc., 77 Ill. App. 2d 268, 273.) Appellants’ reason for not filing objections in time is that they assumed, incorrectly and without investigation, that the procedure in Boone County was the same as that in Winnebago County where the objections may be filed within a certain number of days after the filing of an application for judgment and prior to the entry of judgment. The majority opinion finds that there was some justification for this assumption and expresses concern for the protection of the unwary. The appellants, however, were not unfamiliar with the practice in Boone County which apparently has always been to file tax objections prior to the application for judgment and sale. Nor are appellants unsophisticated or infrequent tax objectors. Rather, they are annual objectors who filed objections prior to the time of application for judgment for at least the four previous years. Under these circumstances, it seems to me that we are unwarranted in assuming that appellants were so misled by the different procedure for filing objections in another county that they deviated from their established practices without the slightest effort to determine if the procedure in Boone County had been changed.
Finally, on September 25, 1969, the statutorily required notice (Ill. Rev. Stat. 1969, ch. 120, par. 706) was published that application would be made on October 6, 1969,,. for judgment and sale against certain listed lands, and that on October 13, 1969, a public sale would be held of all lands against which the judgment and order had been entered. Thus, even if appellants were justified in assuming that a period of time for filing objections prior to judgment would be allowed in Boone County as well as in Winnebago County, it was perfectly clear that such objections must be filed prior to the public sale on October 13. Appellants’ objections were not mailed until October 13 and were not received by the circuit clerk until October 15. While the date of the sale was changed by subsequent notice to October 20, 1969, appellant’s motion for leave to file objections was not filed until October 22, 1969.
The absence of diligence on the part of appellants was, I believe, inadequately explained, and should not be excused in the name of substantial justice.
Mr. Justice Ryan joins in this dissent.