specially concurring:
Although I agree with my colleagues in the majority that the appellate court judgment must be affirmed, I write separately in order to make several observations regarding the procedural aspects of this case.
It is important to remember in this case that plaintiff possessed a final order of judgment from the circuit court of Cook County. Ordinarily, once a judgment is entered by a court and the judgment becomes final, the holder of the judgment can proceed on its enforcement. However, such was not the case for plaintiff due to the passage of time since the April 3, 1990, entry of default. Pursuant to section 12 — 108 of the Code of Civil Procedure, plaintiff had to revive the 1990 judgment in order to enforce it. See 735 ILCS 5/12 — 108 (West 2000) (prohibiting enforcement of judgments after the expiration of seven years). To that end, section 13 — 218 of the Code provides that judgments
“in a circuit court may be revived as provided by Section 2 — 1601 of this Act, within 20 years next after the date of such judgment and not after; and the provisions of Section 13 — 217 of this Act shall apply also to this Section.” (Emphasis added.) 735 ILCS 5/13 — 218 (West 2000).
Section 2 — 1601 of the Code provides that a party seeking to revive a judgment must file a petition to that effect. See 735 ILCS 5/2 — 1601 (West 2000). This statutory provision codifies the former writ of scire facias, which was the procedure used at common law to revive a judgment. See 735 ILCS 5/2 — 1601 (West 2000). The revival proceeding is not a new action, but rather is a continuation of the suit in which the judgment was originally entered. Bank of Edwardsville v. Raffaelle, 381 Ill. 486 (1942). A judgment of revival is binding until it is set aside. 23A Ill. L. & Prac. Judgments § 479 (1979). The recognized effect of a revived judgment is to “revive the judgment just as it formerly existed and to reinvest it with the same attributes and conditions which originally belonged to it.” Bank of Eau Claire v. Reed, 232 Ill. 238, 241 (1908).
This court has held that the only defense to an action for revival is either a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge of the judgment. See Bank of Edwardsville, 381 Ill. 2d at 489; Bank of Eau Claire, 232 Ill. at 240; Dec v. Manning, 248 Ill. App. 3d 341 (1993). These defenses must appear on the face of the record without references to any matters dehors the record. J.D. Court, Inc. v. Investors Unlimited, Inc., 81 Ill. App. 3d 131, 134 (1980).
In the present case, plaintiff filed the petition to revive judgment on August 25, 1997. The Board filed a general appearance in the revival action and moved to vacate the 1990 default judgment. In its motion to vacate, the Board contended that plaintiff had failed to serve the Board in accordance with section 2 — 211 of the Code of Civil Procedure. Discovery was conducted in the matter, and the parties briefed the issue. Evidence depositions were filed with the court, which ultimately found that the 1988 service had been done contrary to section 2 — 211. The circuit court, therefore, granted the Board’s motion to vacate and further ordered that an alias summons be served on the Board. It is that order from which plaintiff appealed.
In my view, the jurisdictional question that we are confronted with in this case arose because the circuit court did not follow the proper procedures in the revival proceedings that plaintiff had commenced. Rather than deny the existence of the judgment or prove its subsequent satisfaction, the Board in this case filed a motion to vacate the judgment, arguing that service of process in 1988 had been improper. In essence, the Board’s position was that the judgment could not be revived because service of process in 1988 had been improper. However, this type of defense necessarily goes to matters dehors the record. As such, it must be raised in a collateral attack on the judgment. See Bank of Eau Claire, 232 Ill. at 240; Foreman v. Illinois Hair & Feather Co., 337 Ill. App. 147 (1949) (and cases cited therein). Thus, the Board’s service of process challenge was premature at that point. The circuit court should have granted plaintiffs petition to revive the judgment before entertaining the Board’s collateral attack regarding the propriety of service.
Had the circuit court properly revived the judgment— the effect of which would have been to reinvest the judgment with the same attributes and conditions which originally belonged to it — the circuit court would then have been able to review the Board’s motion to vacate the 1990 judgment within its proper procedural context. A void judgment, order, or decree may be attacked at any time or in any court either directly or collaterally, without any showing of diligence or meritorious defense. R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986).2 The court could have then disposed of the Board’s motion to vacate, and its order would have been final and appealable for the reasons set forth in the court’s opinion.
Does the fact that the circuit court did not revive the judgment first before considering the Board’s motion to vacate make any kind of difference in this case other than! an academic one? I believe it does. Within the context of a revival proceeding, any order entered by the circuit court in response to the Board’s motion to vacate would have been a final order because it would have conclusively established the rights of the parties in the 1988 suit. Had the court denied the Board’s motion, the only act that would have remained for plaintiff would have been the execution of the judgment. Had the court granted the Board’s motion, the 1990 judgment would have been set aside. According to the Illinois revival statute, in such a case, plaintiff would have had the right to commence an entirely new suit against the Board. See 735 ILCS 5/13 — 218 (West 2000) (referring to section 13 — 217 of the Code). In either event, the circuit court’s order would have been final and appealable because Rule 304(b) specifically allows an appeal from either the granting of or the denial of a section 2 — 1401 petition. The circuit court did not follow the proper procedure, but instead vacated the judgment and ordered an alias summons issued, thereby causing “plaintiffs complaint [to] remain[ ] on file and pending before the trial court” as Justice Thomas’ dissent notes. 201 Ill. 2d at 131 (Thomas, J., dissenting, joined by Fitzgerald, J).
Normally, when the circuit court makes an error, the reviewing court will vacate the erroneous ruling and remand the matter for further proceedings. Although the circuit court did not first take the step of actually reviving the 1990 judgment, its ultimate ruling on the Board’s motion to vacate did serve to open the judgment. I therefore see no harm in treating this case as if the 1990 judgment had been revived and then was subsequently vacated by the court. The effect of the court’s order is to terminate with finality the 1990 action. See Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569 (1943). The correctness of this position becomes clear when one views the case from a different angle — had the circuit court denied the Board’s motion and revived the 1990 judgment — there would be no question that the Board would have been entitled to an appeal.
In this respect, I must also point out my disagreement with the contention made by Justice Thomas in dissent that “a motion to vacate a judgment as void is not the same as a section 2 — 1401 petition for relief from judgment.” 201 Ill. 2d at 133 (Thomas, J., dissenting, joined by Fitzgerald, J.). The dissent does not enlighten us as to what it believes is the proper procedural vehicle by which a party is to bring forth a voidness challenge. The dissent appears to characterize the Board’s motion as one seeking to quash service of process, but as the court rightly counters, the Board’s motion does “more than quash service, it sets aside a final judgment.” 201 Ill. 2d at 106.
Notwithstanding the above, even if one were to agree with the dissenting viewpoint that jurisdiction under Rule 304(b) is improper in this case, I do not believe that alone is the end of discussion. Interestingly enough, the Board, on appeal in this case, argues — not for dismissal on jurisdictional grounds — but for this court to exercise its supervisory authority in order to provide guidance to the parties in the interests of judicial economy. The facts of this case amply illustrate why it is important for this court to review the case on the merits. The issue here is whether the Board’s long-standing manner of accepting service of process is in compliance with the provisions set forth by the legislature in section 2 — 211. The record reveals, and the parties agree, that when plaintiff served defendant in the revival action, plaintiff did so in the exact manner as he did in 1988. Further, plaintiff served the alias summons on the Board (as ordered by the circuit court) in the exact manner as he did in 1988. The Board filed a general appearance in the revival action, but filed a special and limited appearance in the personal injury suit that is currently pending in the circuit court. At oral arguments heard in conjunction with our rehearing of this case on September 25, 2001, the attorney for the Board was asked by a member of the court whether, if plaintiff’s default should be vacated by this court, anything exists which would serve to preclude a trial on the merits. The attorney answered that the first motion that would be filed by the Board would be a motion to strike service. In response to yet another question from the bench, the Board’s attorney informed us that, in the pending case, no “in personam” jurisdiction has attached. It is clear to me, at least, the course that this litigation will take if this court does not address the issue — the propriety of the manner in which service of process was achieved will again be in issue. Therefore, Justice Thomas misses the mark entirely when he states that “we know with certainty that plaintiff will be able to proceed to the merits of that complaint, as, on October 1, 1997, the Board voluntarily submitted itself to the trial court’s jurisdiction by filing a general appearance. [Citation.] Thus, whether service was properly obtained in the first instance no longer is relevant. The trial court now possesses personal jurisdiction over the parties, and plaintiffs action can move forward.” 201 Ill. 2d at 131 (Thomas, J., dissenting, joined by Fitzgerald, J.).
In light of the above, the analysis should not end, as Justice Thomas suggests it should, just because one might believe that the circuit court’s order in this case was not final. I note that in this court’s opinion issued prior to our granting of rehearing, Justice Miller recognized that a decision of the merits in this case was appropriate because of, inter alia, “the likelihood that the issue regarding proper service will be raised again on appeal if the present case is returned unresolved, to the circuit court.” Given the Board’s position, as explained to this court on rehearing, it would be more than a “likelihood” that the issue would be raised if this matter were returned to the trial court unresolved — it would be a certainty. One of the most striking aspects of this case is the fact that plaintiff, in the revival action, served the Board in the exact manner that the Board complains of with respect to the 1988 service of process and would, apparently, complain of again in the pending action if this case were returned to the circuit court. However, the Board did not seek to invalidate the revival service of process. It seems to me that the Board’s long-standing practice with respect to receiving service of process allows the Board to “pick and choose” when it will recognize service and when it will not. In order to effectuate valid service in cases such as this, our courts demand strict compliance with the statute. See Miller v. Town of Cicero, 225 Ill. App. 3d 105 (1992). However, strict compliance is difficult to achieve under the procedures set up by the Board. Thus, even if Rule 304(b) did not allow for jurisdiction in this case, as the dissents believe, the invocation of our supervisory authority would be more than appropriate under the circumstances. Justice Thomas’ dissent does not address this argument and, for these reasons, its position that this court has “no choice” but to dismiss the appeal (201 Ill. 2d at 134 (Thomas, J., dissenting, joined by Fitzgerald, J.)) does not persuade.
In my view, the court today rightfully avails itself of the opportunity that this case provides to bring needed clarity to the issue that is beneficial to not just the parties here, but in future cases as well.
In this case, I view the Board’s motion to vacate as having been made pursuant to section 2 — 1401 of the Code. I do so because the Board’s motion refers specifically to subsection (f) of the statutory provision.