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Reversal of the premature sua sponte dismissal of a §2-1401 petition

April 25, 2014 by in General

This appeal serves as a brief reminder of the proper procedure in connection with the dismissal of a petition under 735 ILCS 5/2-1401, which seeks to vacate a final order, judgment, or decree more than 30 days after its entry. A §2-1401 petition must be served in the same manner as service by summons, by prepaid certified or registered mail, or by publication. Once served, the opposing party has 30 days to answer or otherwise plead.

The opposing party’s failure to answer the petition, as in other civil pleading, constitutes an admission of the well-pleaded facts and renders the petition ripe for adjudication. However, as the Illinois Supreme Court held in People v. Vincent, 226 Ill. 2d 1 (2007), the case will not be ripe for adjudication until 30 days have passed from the time of service because the opposing party must be given the full period to respond.

This appeal arose from the trial court’s sua sponte dismissal of a §2-1401 petition before the opposing party was properly served. The appellate court found the dismissal was premature for that reason and vacated the judgment with remand for further proceedings.

People v. Carter, 2014 IL App (1st) 122613.

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