specially concurring:
I agree with the result reached in this case. However, I do not agree with the court’s statement that relief from a final judgment may be had under section 2 — 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1401 (West 1998)) beyond the two-year limitation of that section where the judgment is being challenged as void. I have previously expressed my views on this subject in my special concurrence in People v. Harvey, 196 Ill. 2d 444, 457-60 (2001) (Garman, J., specially concurring, joined by Fitzgerald and Thomas, JJ.).
Initially, I note that defendant here did not challenge the judgment as void. The court’s general statement concerning how one may challenge a void judgment is unnecessary to the resolution of this case and is, therefore, dicta.
Section 2 — 1401 of the Code contains exceptions to its two-year time limitation only where the person seeking relief is under a legal disability or duress, or where the grounds for relief have been fraudulently concealed. 735 ILCS 5/2 — 1401(c) (West 1998). No exception to the time limitation is provided for a petition challenging a judgment as void. In fact, section 2 — 1401(f) explicitly recognizes that petitions to vacate void judgments do not come within the scope of the statute, stating that nothing contained in section 2 — 1401 “affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.” 735 ILCS 5/2 — 1401(f) (West 1998).
As I noted in my special concurrence in Harvey, 196 Ill. 2d at 459-60, case law demonstrates that a party may challenge a void judgment at any time by motion or petition presented to the court. A petition challenging a void judgment is procedurally distinct from one brought pursuant to section 2 — 1401, in that the former is not subject to the time limitation of a section 2 — 1401 motion, nor is it subject to any due diligence requirements. People v. Reymar Clinic Pharmacy, Inc., 246 Ill. App. 3d 835, 841 (1993). Indeed, a party may not properly invoke section 2 — 1401 relief in challenging a judgment as void even where the petition is brought within two years following entry of the judgment. In People ex rel. McGraw v. Mogilles, 136 Ill. App. 3d 67 (1985), the defendant filed a motion to vacate a judgment for lack of jurisdiction. The challenged judgment was entered on October 28, 1983, and the motion was filed on May 4, 1984. That motion was not designated as a section 2 — 1401 motion. McGraw, 136 Ill. App. 3d at 71. Following denial of the motion, the defendant filed a second motion for relief from judgment, this one pursuant to section 2 — 1401 of the Code, alleging that he had a meritorious defense. McGraw, 136 Ill. App. 3d at 69-70. In response to the plaintiffs argument that the defendant’s first motion to vacate must be treated as a section 2 — 1401 motion, the appellate court stated:
“We do not find merit in plaintiffs argument that both of defendant’s motions must be considered as under section 2 — 1401. This court has recently reaffirmed that a pleading attacking a judgment for lack of jurisdiction is not restricted to the requirements of section 2 — 1401 of the Code of Civil Procedure and void judgments may be set aside on motion even after 30 days from rendition. [Citations.] Subsection (f) of section 2 — 1401 of the Code of Civil Procedure also acts to preserve the existing right of a party to seek relief from a void judgment by means other than section 2 — 1401, and we consider defendant by his first motion to vacate did so here.” McGraw, 136 Ill. App. 3d at 72.
Other cases have construed section 2 — 1401 of the Code or its predecessor, section 72 of the former Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), as providing no grounds for relief from a void judgment where the petition is filed within two years following entry of the judgment. See, e.g., Nelson v. United Airlines, Inc., 243 Ill. App. 3d 795, 799 (1993) (motion to vacate default judgment as void for lack of personal jurisdiction was filed four months after entry of judgment; appellate court refused to consider motion under section 2 — 1401 of the Code, noting that it is well settled that a motion to vacate a judgment for lack of jurisdiction is not considered a section 2 — 1401 petition); Mason v. Freeman National Printing Equipment Co., 51 Ill. App. 3d 581, 585 (1977) (motion to vacate default judgment as void for lack of personal jurisdiction was filed less than six months following judgment; appellate court held that defendant was not required to plead a meritorious defense, as section 72, by its express terms, is not applicable to a motion to vacate a void judgment); G. Brock Stewart, Inc. v. Valenti, 43 Ill. App. 3d 673, 674 (1976) (construing a petition alleging lack of personal jurisdiction to be in the nature of a special and limited appearance); Mabion v. Olds, 84 Ill. App. 2d 291, 294-95 (1967) (holding that a motion attacking a default judgment as void filed less than one year after entry of judgment would not be considered a petition under section 72 of the former Civil Practice Act).
I note that section 2 — 1401(f) of the Code is identical to the language of section 72(6) of the former Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72(6)). Certainly, if section 2 — 1401 of the Code is not applicable to a motion attacking a void judgment within that section’s two-year time limitation, it would be anomalous to hold that a motion attacking a void judgment filed beyond the two-year time limitation may be considered under section 2 — 1401.
The language of section 2 — 1401(f) is clear. There is no basis in the statutory language of section 2 — 1401 or case law interpreting that section for the majority’s statement that motions challenging judgments as void that are filed beyond the two-year limitation of section 2 — 1401 may be brought under that section.
JUSTICES FITZGERALD and THOMAS join in this special concurrence.