also dissenting:
The law is well established that, unless specifically authorized by the rules of this court, the appellate court has no jurisdiction to review judgments, orders, or decrees that are not final. Department of Central Management Services v. American Federation of State, County & Municipal Employees, 182 Ill. 2d 234, 238 (1998). Consequently, where the appellate court has considered the merits of a nonfinal order over which it lacked jurisdiction, this court must vacate that court’s judgment and dismiss the appeal. Department of Central Management Services, 182 Ill. 2d at 238. An order or judgment is final if, on the issues presented in the pleadings, it “ascertains and fixes absolutely and finally the rights of the parties.” Department of Central Management Services, 182 Ill. 2d at 238. Stated differently, a final order or judgment is one that “terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof.” R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998).
The majority resolves the complicated jurisdictional question in this case by relying almost exclusively upon this court’s recent decision in People v. Harvey, 196 Ill. 2d 444 (2001). Even a cursory inspection of Harvey reveals that the decision in no way relates to — let alone definitively settles — the question identified. Indeed, Harvey is not a default judgment case. Rather, it is post-conviction criminal matter in which the defendant filed a section 2 — 1401 petition attacking his extended-term prison sentence as void. And not surprisingly, that sentence was not handed down by default, but after a jury trial established defendant’s guilt beyond a reasonable doubt. Harvey, 196 Ill. 2d at 446. Given the facts of Harvey, one might wonder what in the world a discussion of the finality of an order vacating a civil default judgment is doing in there. The short answer is it’s not. For that discussion, we must look elsewhere.
There simply is no bright line rule that an order vacating a judgment for lack of proper service is ipso facto final and appealable. Rather, whether such an order is final and appealable turns on the particular facts of the given case. More specifically, whether such an order is final — indeed, whether any order is final — turns on whether that order “ascertains and fixes absolutely and finally the rights of the parties.” Department of Central Management Services, 182 Ill. 2d at 238. With respect to a motion to quash service, this is a fact-specific inquiry that will be answered differently in different cases.
For example, in Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569 (1943), this court concluded that an order quashing service of summons on a foreign corporation was a final, appealable order. We reached this conclusion not because all such orders are final and appealable, but rather because, under the particular facts presented in Brauer, the order effectively terminated the litigation on the merits. As the court explained:
“It is true, the order, in form, was only an order quashing the service of the summons. It was not an order dismissing the suit, nor was it in the form of a final judgment on the merits. Regardless of its form, however, it was a complete and final disposition of the case, based upon the conclusion the court had reached that appellee was not amenable to the service of process in the manner in which the summons was served. On that issue it was not only as effectual and conclusive but it was as final as any decision upon the merits. The result was the same.” (Emphasis added.) Brauer, 383 Ill. at 577.
Some appellate court decisions have construed the foregoing language as a categorical statement that all orders quashing the service of summons are final and appealable. See, e.g., Cavanaugh v. Lansing Municipal Airport, 288 Ill. App. 3d 239 (1997); DiNardo v. Lamela, 183 Ill. App. 3d 1098 (1989); In re Marriage of Kelso, 173 Ill. App. 3d 746 (1988); Connaughton v. Burke, 46 Ill. App. 3d 602 (1977). These decisions misconstrue the holding in Brauer. As the following passage demonstrates, the holding in Brauer was driven solely by the particular facts of that case:
“The facts alleged in this case, which must be accepted as true, show that service could not be obtained in any other manner. The order quashing the service was, therefore, as final and conclusive as any order which could have been entered.” (Emphasis added.) Brauer, 383 Ill. at 578.
Brauer therefore does not stand for the proposition that every order quashing service is a final, appealable order. Rather, Brauer confirms that the character of an order depends on the circumstances of the case. In some instances, as in Brauer, it is properly characterized as final and appealable. In other cases, however, it is not. See, e.g., Nelson v. United Airlines, Inc., 243 Ill. App. 3d 795, 799-800 (1993). Once again, the critical inquiry is whether, under the particular facts of a given case, the order quashing service “ascertains and fixes absolutely and finally the rights of the parties.” Department of Central Management Services, 182 Ill. 2d at 238.
Looking at the particular facts presented in this case, this court should easily conclude that the order vacating the $10 million default judgment for a lack of proper service is not final. First, plaintiffs complaint remains on file and pending before the trial court. More importantly, and in stark contrast to Brauer, 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. See State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (court obtains personal jurisdiction upon filing of general appearance). 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.
Of course, as the Board correctly points out, the filing of a general appearance cannot retroactively validate a judgment that was entered in the absence of personal jurisdiction. See, e.g., In re Marriage of Verdung, 126 Ill. 2d 542, 547 (1989); Christiansen v. Saylor, 297 Ill. App. 3d 719, 723 (1998). Thus, if the trial court correctly concluded that the $10 million default judgment was void for a want of personal jurisdiction, that judgment remains void today, irrespective of the Board’s subsequent general appearance. However, the filing of a general appearance does constitute a submission to the trial court’s jurisdiction on a prospective basis. See J.C. Penney Co. v. West, 114 Ill. App. 3d 644, 647 (1983); Sullivan v. Bach, 100 Ill. App. 3d 1135, 1142 (1981). Had the Board wished to contest the trial court’s jurisdiction both at the time of the default judgment’s entry and in the future, the proper vehicle would have been a special and limited appearance. See, e.g., Christiansen, 297 Ill. App. 3d at 723 (“where a judgment has previously been entered against a party, there is no need to file a special and limited appearance to challenge past jurisdiction unless the party also wishes to contest the court’s prospective jurisdiction” (emphasis added)). By instead filing a general appearance, the Board waived the receipt of proper service and submitted itself to the trial court’s jurisdiction going forward. This case therefore is very different from Brauer, in which “the plaintiff could not proceed further” because “service could not be obtained in any other manner.” Brauer, 383 Ill. at 578.
Because the order vacating the $10 million default judgment is not final, the appellate court had no jurisdiction to review that order absent specific authority from this court’s rules. Department of Central Management Services, 182 Ill. 2d at 238. The majority asserts that such authority exists in Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)), which permits a direct appeal from orders granting relief under section 2 — 1401 of the Code of Civil Procedure (735 ILCS 5/2 — 1401 (West 2000)). Like Harvey, Rule 304(b)(3) has no application to this case.
The Board’s motion to vacate the $10 million default judgment clearly is not a petition for relief from judgment under section 2 — 1401. It is well established that a motion to vacate a judgment as void is not the same as a section 2 — 1401 petition for relief from judgment. In re Estate of Steinfeld, 158 Ill. 2d 1, 19 (1994); Nelson v. United Airlines, Inc., 243 Ill. App. 3d 795, 799 (1993). Indeed, section 2 — 1401 itself expressly recognizes that nothing set forth therein in any way limits a party’s right to seek relief from a void judgment through other means. 735 ILCS 5/2 — 1401(f) (West 2000). Thus, in Estate of Steinfeld, the court held that, although filed within section 2 — 1401’s two-year limitations period, a motion to vacate an order as void was not a section 2 — 1401 petition because the motion (1) was confined to contesting the order as void, (2) did not invoke section 2 — 1401, and (3) did not seek equitable relief under section 2 — 1401. Estate of Steinfeld, 158 Ill. 2d at 18-19. To be sure, a party challenging a void judgment may, for whatever reason, elect to proceed under section 2 — 1401 by specifically invoking that section in his or her petition. Such was the case in Harvey. But Estate of Steinfeld teaches that a party challenging a void judgment may just as easily elect not to proceed under section 2 — 1401 by not invoking that section in his or her pleading.
In this case, the Board clearly elected not to invoke section 2 — 1401 in its motion to vacate the $10 million default judgment. Just as in Estate of Steinfeld, the motion filed by the Board (1) was confined to contesting the default judgment as void, (2) did not invoke section 2 — 1401, and (3) did not seek equitable relief under section 2 — 1401. Indeed, the Board’s motion explicitly states that it is not bound by the requirements of section 2 — 1401 because it is contesting the default judgment’s validity under one of the alternative methods alluded to in section 2 — 1401(f). Thus, as in Estate of Steinfeld, the Board’s motion to vacate is not a section 2 — 1401 petition. Consequently, the trial court’s order granting that motion is not subject to immediate appeal under Rule 304(b)(3), and this court has no choice but to vacate the appellate court’s decision and dismiss this appeal. Department of Central Management Services, 182 Ill. 2d at 238.
For the foregoing reasons, I dissent.
JUSTICE FITZGERALD joins in this dissent.