author: PRESIDING JUSTICE McCULLOUGH

text:
      In re LINDA PEASLEY, Court Reporter.
    Fourth District
    No. 89—MR—1
    Opinion filed October 12, 1989.

      No appearance for petitioner.
    William B. Lawrence, of Markowitz & Lawrence, of Bloomington, for respondent.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

On July 6, 1989, the rule to show cause for criminal contempt entered against the respondent informed the respondent of 15 cases on appeal to this court from approximately October of 1988 through May of 1989, the names of the cases, the appellate court case numbers, the dates reports were due, any extensions granted, and the date the records (if any) were filed. According to the respondent, this is a correct listing of all of the transcripts which were due by the respondent during this period of time. The clerk of this court has indicated there is one other case in which the respondent was responsible for the transcript, in addition to these 15 cases, and that case is County of Tazewell v. Industrial Comm’n, 4th Dist. Gen. Nos. 4 — 89—0170, 4 — 89— 0201. The court takes judicial notice of this additional case which was not listed on the rule to show cause. In none of the cases in the rule to show cause did the respondent meet the date the transcript of proceedings was due per the docketing order of this court. In the Industrial Commission case, although no docketing order was entered, the record reflects that the respondent did not prepare a timely transcript after formal request.

A preliminary hearing was held July 25, 1989, the respondent and her attorney being present before Presiding Justice, John T. McCullough. At the appellate court’s request, Robert Biderman, Deputy Director, State’s Attorney Appellate Prosecutor (SAAP), was present as was Kenneth Crenshaw, the Court Reporting Manager of the Administrative Office of the Illinois Courts. A court reporter was present to report the proceedings.

At the preliminary hearing, the respondent was admonished of her rights and the possible penalties that may be imposed. The respondent entered a denial of the rule, was granted leave to file motions, and a hearing on the rule was set for August 21, 1989.

On August 21, 1989, a hearing was held on the rule to show cause. The respondent, her attorney, the Deputy Director of SAAP, and Kenneth Crenshaw were present. A court reporter was present to report the proceedings.

Before we address the merits of the case we deem it appropriate to discuss, in some detail, the motions filed by respondent during the course of these proceedings and the reasons, where appropriate, for the filings made thereon.

With leave of court, respondent was allowed to file written motions on or before August 4, 1989. In addition, during the course of the August 21, 1989, hearing, a number of oral motions were presented. At that time, counsel for respondent argued the merits of all motions.

Initially, respondent filed a petition for change of venue from Presiding Justice McCullough on the theory he was “interested” within the meaning of the civil venue statute (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101). In support, respondent argued Judge McCullough’s contacts with Judge Caisley prior to the issuance of the rule, the issuance of the rule itself, and the fact Judge McCullough presided at the preliminary hearing on July 25, 1989, constituted evidence that Justice McCullough had prejudged the case against respondent. During the course of the hearing on August 21, 1989, counsel modified his original theory with an oral motion for change of venue under section 114 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5) on the basis the criminal venue statute was more properly applicable because the nature of the charge was criminal contempt. Under either statute, respondent argued, the change should be automatic.

While it may be true, as a general proposition, that civil procedure rules are generally applied to cases of civil contempt and criminal procedure rules to cases of criminal contempt (Daniel Boone Woolen Mills & Rock Island Garment Co. v. Laedeke (1925), 238 Ill. App. 92), contempt proceedings are neither civil nor criminal but rather sui generis. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294; People v. Doss (1943), 382 Ill. 307, 46 N.E.2d 984.) Because the power of a court to punish for contempt is inherent as essential and proper to the effective functioning of the courts and to the administration of justice (People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670), courts are not strictly bound by the provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 1 — 101 et seq.) or the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 100 — 1 through 126 — 1). (47th & State Currency Exchange, Inc., 56 Ill. App. 3d at 234, 371 N.E.2d at 298.) More specifically, it has been stated the venue statute does not apply to proceedings to punish contempts unless such proceedings are expressly included in the statute. (Doss, 382 Ill. at 311, 46 N.E.2d at 987.) Since the court is not bound by either the code of civil or criminal procedure and the relevant venue statutes do not expressly apply to contempt proceedings, neither venue statute is applicable and a request for substitution of judge is not automatic.

Whether a change of venue should nevertheless be granted must still be considered. The general rule is that a judge is not disqualified from conducting contempt proceedings merely because the contempt was committed against himself or a court of which he was a member. (See Annot., 64 A.L.R.2d 600 (1959).) The standard to be applied is to look to the nature of the contemptible conduct to determine whether it would so inflame a judge that he could not remain impartial. If the conduct does not rise to the level of viciousness, there is no absolute prohibition forbidding the same judge against whom the contempt was directed from hearing the case. (Mayberry v. Pennsylvania (1971), 400 U.S. 455, 27 L. Ed. 2d 532, 91 S. Ct. 499; People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1; In re Albert (1970), 383 Mich. 722, 179 N.W.2d 20.) In this case, we conclude respondent has not established the conduct giving rise to the rule to show cause is of such a nature that the members of this court, individually or collectively, could not remain impartial in considering the merits. Accordingly, respondent’s motions for change of venue are denied. For the very same reasons, respondent’s additional oral motion for substitution of all Fourth District judges who have any knowledge of this case is also denied.

Respondent’s second written motion was to dismiss the rule to show cause on the theory the appellate court is not a proper party to initiate the rule because respondent files transcripts in the circuit court, not the appellate court. Respondent also maintains there is an alternative administrative statutory procedure which may be employed to consider this matter and, therefore, the power of contempt should not be used when other adequate remedies are available. Defendant also contends the allegation in the rule that the conduct is wilful is a conclusion unsupported by facts. Finally, respondent argues the issue is moot because all transcripts for cases covered by the rule were filed with the circuit court on or before the date of the preliminary hearing, July 25,1989.

As to whether this court is a proper party to initiate the rule to show cause, respondent’s argument is without merit. Article VI, section 6, the Constitution of Illinois (1970) provides in pertinent part: “The Appellate Court may exercise original jurisdiction when necessary to the complete determination of any case on review.” (Ill. Const. 1970, art. VI, §6.) That power extends to entering such orders as may be necessary to cause a proper circuit court record to be made and filed. (See Ill. Rev. Stat. 1987, ch. 37, par. 35.) Moreover, as we have previously noted, the power of a court to punish for contempt does not depend on constitutional or legislative grant, but is inherent in all courts as essential to the proper and effective functioning of the courts and to the administration of justice. (Javaras, 51 Ill. 2d 296, 281 N.E.2d 670; Stevens v. County of Lake (1974), 24 Ill. App. 3d 51, 320 N.E.2d 263; People v. Bloom (1966), 35 Ill. 2d 255, 220 N.E.2d 475, cert, granted (1967), 386 U.S. 1003, 18 L. Ed. 2d 431, 87 S. Ct. 1346, rev’d on other grounds (1968), 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477.) Notwithstanding these principles, respondent argues the proper forum for these proceedings is the circuit court since it is the circuit court in which respondent files her transcripts. This argument is without merit. Upon the filing of a timely notice of appeal, the circuit court is divested of jurisdiction. From that moment forward, jurisdiction lies in the appellate court and it is the order of the appellate court requiring the production of transcripts and the failure to comply with that order which establishes the basis for the offending conduct which is the subject of the rule. Since it is the order of this court which is being violated, this court is a proper party to initiate these proceedings.

Respondent’s alternative argument, that contempt proceedings should not be employed when alternative administrative procedures have been established to review the propriety of the conduct involved, is also without merit. Although we have taken under advisement respondent’s request that these matters be referred to the appropriate administrative authority under the Illinois Certified Shorthand Reporters Act of 1984 (Reporters Act) (Ill. Rev. Stat. 1987, ch. 111, par. 6201 et seq.), a matter which will be discussed more fully below, we reject respondent’s initial contention the court is without power to act in the face of these alternative procedures.

While it is true that separate administrative sanctions may be imposed and are not dependent upon a finding of contempt for their validity (People ex rel. Chicago Bar Association v. Sherwin (1936), 364 Ill. 350, 4 N.E.2d 477; People ex rel. Chicago Bar Association v. Metzen (1919), 291 Ill. 55, 125 N.E.2d 734), administrative remedies and contempt proceedings are nevertheless entirely independent. Even assuming the potential penalties available to the administrative authority upon a determination a violation of the act has occurred are criminal in nature (see Ill. Rev. Stat. 1987, ch. 111, par. 6239), additional sanctions by means of contempt do not offend principles of double jeopardy. (See People v. Totten (1987), 118 Ill. 2d 124, 514 N.E.2d 959.) Because the potential remedies available here are not mutually exclusive, respondent’s motion to dismiss because of the existence of alternative administrative remedies is denied.

Respondent’s third contention, that the rule to show cause does not contain facts sufficient to demonstrate her conduct is wilful, is also without merit. It is clear that transcripts were not timely filed in each case cited in the rule to show cause and that the applicable supreme court rule regarding the filing of transcripts has been repeatedly violated. Respondent does not contend otherwise. The pattern of repeated violations demonstrated by the records of this court of which the court can take judicial notice (Albert, 383 Mich. 722, 179 N.W.2d 20) and which may be proved by the manner permitted by statute (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 1202) are facts and, hence, circumstantial evidence sufficient to support the issuance of the rule to show cause. Accordingly, respondent’s motion to dismiss on this basis, which we had previously taken under advisement, is now denied.

The final basis for respondent’s written motion to dismiss the rule is that the issue is moot because all transcripts were filed on or before the date of the preliminary hearing in this matter. We disagree. While it appears respondent did produce the transcripts for filing prior to the preliminary hearing, they were produced only after the rule to show cause was issued and were clearly not filed within the time frame set by supreme court rule or this court’s specific orders. Since production was not in compliance with the original order to prepare the transcripts, the mere fact the transcripts have now been filed does not render the issue moot. (Accord People v. Boclair (1987), 119 Ill. 2d 368, 519 N.E.2d 437.) For this reason, respondent’s motion to dismiss on the basis the issue is moot, which was previously taken under advisement, is now denied.

Respondent’s next written motion requested a jury trial in McLean County. The basis for the request was that the potential sentence, i.e., six months’ imprisonment and a $500 fine, was sufficiently severe to require a trial by jury and venue was properly in McLean County because the acts or omissions ascribed to respondent occurred in McLean County.

The United States Supreme Court has clearly held that a respondent is not entitled to a jury trial if the penalty is no greater than six months’ imprisonment or a $500 fine or both, the sentence for a petty offense under Federal law. (Bloom, v. Illinois (1968), 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1377; Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021, 385 N.E.2d 829; see also People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50; Blanton v. City of North Las Vegas (1989), 489 U.S. 538, 103 L. Ed. 2d 550, 109 S. Ct. 1289.) Since respondent is not entitled to a jury trial, the issue of where such a jury trial might be held is irrelevant. Even were we to consider the venue issue on the merits, respondent is in contempt, if at all, of an order of this court, and the designated venue of the Appellate Court for the Fourth Judicial District is Springfield, Sangamon County, Illinois (107 Ill. 2d R. 22(a)). Respondent’s motion for jury trial in McLean County is denied.

Respondent’s final written motion requested that the court or someone acting on its behalf proceed to prove the case against her prior to her being required to present evidence on her own behalf. Respondent claims that directing her to proceed violates due process, denies her the presumption of innocence, and compels her to give evidence against herself. She argues that extrinsic evidence must be offered to support the charge and the rule to show cause itself is not evidence. What respondent ignores is that the records of this court have been introduced for each of the cases cited in the rule. As was stated in In re Albert (1970), 383 Mich. 722, 724,179 N.W.2d 20, 22:

“A court’s judicial notice of its own records is a wholly satisfactory ‘other method’ of establishing the failure or the fact of filing in a particular period — the gravamen of the charge here.”

As the Supreme Court of Michigan also observed in that case, a court of appeals is a court of record, and if an order requiring affirmative action by a party to the appeal is a valid order in a particular case, the neglect or refusal to obey it is contempt of court.

Respondent cites no authority for the proposition the procedure employed here violates due process. Respondent has been given notice of her conduct and supplied with the records of this court which demonstrate a continuing and repeated failure to file transcripts on time. She has been admonished of her rights and the potential penalty. She has been afforded a hearing to present whatever defense she may choose. As was stated by the United States Supreme Court in Cooke v. United States (1925), 267 U.S. 517, 537, 69 L. Ed. 767, 774, 45 S. Ct. 390, 395:

“Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.”

All these things have been afforded respondent. (See People v. Waldron (1986), 114 Ill. 2d 295, 500 N.E.2d 17.) Accordingly, respondent’s motion to require the court to proceed by presenting evidence is denied.

Respondent presented two other oral motions during the course of the hearing on this matter. The first was a motion for leave to change the proceedings from criminal to civil contempt on the theory the rule was issued to coerce respondent’s production of the transcripts rather than to punish for an offense to the dignity of the court. This motion, together with respondent’s second oral motion, for a directed verdict at the close of respondent’s presentation of evidence, was taken under advisement. The motions are denied.

The respondent admits the show cause rule covers all cases in the appellate court during this period of time in which she had responsibility as court reporter except a case by the name of Bush. (In re Marriage of Bush, 4th Dist. Gen. No. 4 — 88—0716.) The respondent testified the Childs and Wheeler transcripts were filed on time. (Peo pie v. Childs, 4th Dist. Gen. No. 4 — 89—0424; People v. Wheeler, 4th Dist. Gen. No. 4 — 89—0094.) She also asserts the transcript in Frabotta was timely filed. (People v. Frabotta, 4th Dist. Gen. No. 4 — 89— 0094.) In Frabotta, the transcript was originally due on March 16, 1989, two extensions were granted, with a final due date of July 28, 1989. The transcript was filed on June 29, 1989. In Wheeler, the transcript was due per the docketing order on June 15, 1989, and was filed July 24, 1989. In Childs, the transcript was due per the docketing order on July 11,1989, and was filed July 13,1989.

The procedures of the Fourth District Appellate Court permit a court reporter to file a request for extension of time to provide the transcript on a form provided by the Clerk of this Court, without the necessity of the reporter contacting the attorney representing the party responsible for the transcript in the record. Although none of the transcripts were filed within the first docketing order due date, some of the transcripts were filed within the term of the extension granted.

As to Myers and Janecek (People v. Myers (1989), 181 Ill. App. 3d 769, 537 N.E.2d 1089; People v. Janecek (1989), 185 Ill. App. 3d 89, 540 N.E.2d 1139), respondent testified she did not file a request for extension because she would use the additional 14 days allowed the circuit court clerk to prepare the record and “I could see that I was going to have it on file in two or three days, and I just put it on file.” To accept the respondent’s rationale for not complying with the supreme court rule, which we do not accept, the clerk’s record was to be filed in Myers, November 25, 1988, 14 days after respondent’s report of proceedings was due. The Myers transcript was not filed until December 12, 1988. In Janecek, respondent’s report of proceedings due November 16, 1988, was not filed until December 21, 1988, some 21 days after clerk’s record was due.

In People v. Stampley, 4th Dist. Gen. Nos. 4 — 89—0183, 4 — 89— 0184, the due date per the docketing order was April 19, 1989, no extensions granted, the time for filing the transcript expired, the transcript was filed on June 16, 1989, as admitted by the respondent. Although the respondent was well aware that a request for extension could have been filed, none was filed by the respondent, and the actions of the respondent in Stampley are wilful. Likewise in People v. Clark, 4th Dist. Gen. No. 4 — 89—0216, transcript due date of April 27, 1989, no request for extension, testimony of the respondent indicates that the transcript was filed on July 24, 1989, almost three months after the original due date of the transcript.

In People v. Skelton, 4th Dist. Gen. No. 4 — 89—0273, an extension was granted, the deadline not met, and the rules of this court ignored. Wheeler, likewise, shows a failure to meet the docketing order due date.

As shown by the evidence in this proceeding, the respondent ignored the supreme court rules. The respondent became current in her work only after the order to show cause was entered by this court.

In summary as to wilful criminal contempt:

(1) Supreme Court Rule 323 (107 Ill. 2d R. 323) sets forth the timetable for due dates to be followed by court reporters in preparing and filing transcripts.

(2) The respondent had responsibility for 16 transcripts in the Fourth District Appellate Court during the period October 1988 to July 1989.

(3) The Fourth District Appellate Court entered docketing orders with transcript due dates in the 15 cases cited in the rule to show cause. A formal request for transcript was made in the Industrial Commission case.

(4) Respondent failed to meet the original docketing order due dates in all of these cases on appeal wherein she had responsibility as court reporter.

(5) Respondent was aware of her responsibility per Supreme Court Rule 323 and was cognizant of the procedures permitting court reporters to request extensions in the Fourth District Appellate Court. She does not show cause for her repetitive wilful violation of rules and procedures.

(6) In Myers, Janecek, Stampley, Clark, Skelton, and Wheeler, the violations of the Supreme Court Rule 323, the docketing orders of this court, and the procedures of this court were wilful criminal contempt. Of the 15 cited cases, respondent testified that only Frabotta, which involved two granted extensions, was timely filed.

In determining the penalty to be imposed against the respondent, evidence in mitigation was presented. The Chief Judge of the Eleventh Circuit and her immediate supervising judge testified to her years of loyal service to the court and presented a positive evaluation of her overall performance. The evidence also indicated a heavy workload. Testimony and exhibits were admitted concerning communications between the Chief Judge of the Eleventh Circuit and the Presiding Judge of the Fourth District Appellate Court. Although the correspondence indicates concern of Mrs. Peasley, neither she nor the Chief Judge provided any procedure to resolve the continued violations by her. The Chief Judge and supervising judge have some management responsibility for the delays. However, the responsibility to comply with the supreme court rules and the orders of this court is the respondent’s. During the period of time of this rule, her conduct in failing to comply was wilful. For reasons known only to herself, no steps were taken to remedy the repetitive violation of the rule and orders. Only after the rule to show cause was entered did the respondent become current.

The respondent introduced a statement by the Clerk of this Court that extensions are routinely granted. This is hardly an excuse for her conduct. Nor should this court’s leniency in considering reporters’ requests be deemed automatic. The supreme court rules and orders of this court are to be conscientiously and strictly followed.

The respondent, by motion, suggests discharge of the rule in favor of administrative procedures pursuant to the Reporters Act (Ill. Rev. Stat. 1987, ch. 111, par. 6201 et seq.). Although respondent’s motion is denied, the disposition made here is found to be adequate in view of Mrs. Peasley’s long service with the court.

The respondent Linda Peasley, as stated heretofore, is found in wilful criminal contempt of this court, is sentenced to a fine of $100 and ordered to pay the costs of service of the rule by the sheriff of McLean County, Illinois, in the amount of $15 and the court reporters’ costs in the amount of $431.75, fine and costs to be paid within 60 days.

The action taken by this court today may be considered drastic and unfair by the respondent, but is absolutely necessary to the protection of defendants’ rights to timely disposition of appeals.

The clerk is directed to send a copy of this opinion to respondent’s attorney instanter and file certificate of mailing.

Ordered entered.

KNECHT and SPITZ, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    ROBERT KNODLE et al., Plaintiffs and Counterdefendants-Appellants, v. JEANNE M. JEFFREY et al., Defendants and Counterplaintiffs-Appellees.
    Second District
    No. 2—88—0867
    Opinion filed October 16, 1989.

      William E. Sisler, of Madden & Sisler, of Freeport, for appellants.
    Elmer C. Rudy, of Williams & McCarthy, RC., of Rockford, for appellee Jeanne M. Jeffrey.
    No brief filed for other appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiffs and counterdefendants, Robert and Priscilla Knodle (Knodles), appeal from a judgment of the circuit court of Stephenson County entered in favor of defendant and counterplaintiff, Jeanne M. Jeffrey, finding title to the subject real property to be in Ms. Jeffrey, free of any claims by the Knodles. The Knodles have appealed pursuant to Supreme Court Rule 304(a) (124 Ill. 2d R. 304(a)) from a final judgment as to less than all the parties and/or claims where the trial court entered the requisite written finding that there was no just reason to delay enforcement or appeal.

The Knodles purchased the subject property located in Stephenson County, Illinois, at a sale conducted by the United States Internal Revenue Service (IRS) on May 20, 1982. The subject property had been seized by the IRS from its owners in joint tenancy, William Hill and his ex-wife, Dianna Carlson, f/k/a Dianna Hill, due to their failure to pay a delinquent tax bill. Ms. Jeffrey purchased the subject property in November 1983 from William Hill and Dianna Carlson, and a warranty deed from William Hill and Dianna Carlson to Ms. Jeffrey was recorded on November 17, 1983. The Knodles sued Ms. Jeffrey, among others, to quiet title, gain possession of the subject property and recover rents. Ms. Jeffrey answered, filed affirmative defenses and counterclaimed against the Knodles to quiet title. The Knodles filed answers and affirmative defenses to Ms. Jeffrey’s counterclaim. Ms. Jeffrey also sued William Hill and Dianna Carlson for breach of the warranty deed in the event Ms. Jeffrey was determined not to have a clear title to the subject property. The Knodles and Ms. Jeffrey entered into a stipulation of facts upon which the trial court entered judgment in favor of Ms. Jeffrey and from which the Knodles now ap: peal. The issue before this court concerns the legal effect of a prior Federal suit to set aside the tax sale due to a lack of notice, filed by Ms. Jeffrey’s predecessor in interest, Dianna Carlson. Dianna Carlson dismissed her Federal suit with prejudice on November 21, 1983, only a short time after the subject property was sold to Ms. Jeffrey.

The following facts are contained in the stipulation of facts entered between the Knodles and Ms. Jeffrey. On July 15, 1981, the IRS recorded a lien against the subject real property, owned by William Hill and Dianna Carlson, then known as Dianna Hill, for delinquent taxes alleged to be due for the year 1976. The subject property was seized by the IRS in April of 1982. The property was sold by the IRS at public auction to the Knodles on May 20, 1982. A certificate of the tax sale was recorded on May 28, 1982.

On August 4, 1982, Dianna Carlson, then a resident of the State of Washington, filed suit in the District Court of the United States for the Northern District of Illinois, Western Division (district court), against her ex-husband, William Hill, as well as the Knodles, the United States of America and others in an attempt to obtain a declaration that the tax sale of May 20, 1982, was invalid and for other relief. Dianna Carlson had divorced William Hill on May 14, 1978, and because no property settlement has been effected, Dianna Carlson claimed an interest in the property. In her Federal complaint, Dianna Carlson alleged that the property was sold at auction without notice to her and further that she was not liable for the underlying tax debt. On August 13, 1982, a certificate of release of the Federal tax lien was recorded. On August 20, 1982, a Us pendens notice of the Federal suit was recorded. Dianna Carlson sought a preliminary injunction prohibiting the government from issuing a tax deed. The government moved to dismiss the entire action on the grounds that section 7421(a) of the Anti-Injunction Act (26 U.S.C. §7421(a) (1982)) deprived the district court of subject-matter jurisdiction. The government agreed not to issue the tax deed pending the court’s ruling on the request for a preliminary injunction. After an evidentiary hearing, the court, finding it had jurisdiction, further found that Dianna Carlson was not given proper notice by the IRS in that written notice was not mailed to her last known address. (See Reece v. Scoggins (5th Cir. 1975), 506 F.2d 967.) Finding other factors necessary to the issuance of a preliminary injunction present, the district court on December 30, 1982, entered a preliminary injunction enjoining the Federal government from issuing a tax deed to the Knodles.

The property was sold by William Hill and Dianna Carlson to Ms. Jeffrey and on November 17, 1983, a warranty deed for the subject property to Ms. Jeffrey was recorded. On November 21, 1983, pursuant to a stipulation by the parties to the Federal suit as authorized by Federal Rule of Civil Procedure 41(a)(l)(ii) an order dismissing the Federal suit with prejudice was entered by the district court. On March 28, 1984, a deed to the subject property from the district director of the IRS to the Knodles was recorded. No party has ever redeemed the property within the time provided for under Federal law.

The Knodles filed their complaint in the instant suit in the circuit court of Stephenson County on May 30, 1984. After the Knodles and Ms. Jeffrey entered into the stipulation of facts, both parties filed written briefs, and argument was heard before the court. The Knodles argued that Ms. Jeffrey, as a successor in interest to William Hill and Dianna Carlson after the tax sale and after the certificate of sale had been recorded, was required to redeem the property within 120 days pursuant to section 6337(b) of the Internal Revenue Code (IRC) (26 U.S.C. §6337(b) (1982)) or obtain a judicial determination that the seizure and the sale were invalid or otherwise void and stop the issuance of the tax deed to the purchasers, the Knodles. Neither Dianna Carlson nor her successor redeemed the property. The Knodles also argued that at the time Ms. Jeffrey purchased the subject property in November 1983, a proper lis pendens notice of the Federal suit had been recorded by Dianna Carlson which bound Ms. Jeffrey to the outcome of the Federal suit. Since that suit was dismissed with prejudice by Dianna Carlson, Ms. Jeffrey could not reassert a claim or defense in the present action where her predecessor in interest abandoned the claim now sought to be asserted by Ms. Jeffrey.

Ms. Jeffrey argued that the IRS failed to give proper notice of the tax sale to Dianna Carlson, and, therefore, the deed issued to the Knodles as purchasers at the improper tax sale was void. (26 U.S.C. §6335 (1982); Reece v. Scoggins (5th Cir. 1975), 506 F.2d 967; Kelly v. Lunding (1985), 131 Ill. App. 3d 410, 475 N.E.2d 1093.) The trial court, relying on Scoggins and Lunding, ruled that since no notice of the tax sale was given to Dianna Carlson, the sale was void and so was the tax deed issued to the Knodles. The trial court quieted title to the subject property in Ms. Jeffrey, clear of any claims of the Knodles.

On appeal, the Knodles contend that since a lis pendens notice of the Federal suit had been properly recorded prior to Ms. Jeffrey’s purchase of the subject property, she took the property subject to the right of the parties to the litigation, including her predecessor in interest, Dianna Carlson, as finally determined in the pending Federal litigation. Since the Federal suit was dismissed with prejudice by the district court, the Knodles contend that principles underlying lis pen-dens and res judicata bar Ms. Jeffrey as a successor in interest to Dianna Carlson from relitigating the validity of the tax sale and deed. Ms. Jeffrey argues that the issues of res judicata and lis pendens are waived on appeal due to the Knodles’ failure to raise these issues in the trial court.

The Knodles did not waive the issue of whether the Federal suit filed by Ms. Jeffrey’s predecessor in interest precluded Ms. Jeffrey’s attempts to gain relief in the State court. The Knodles, as part of their answers to Ms. Jeffrey’s counterclaim under the heading of affirmative defense, expressly and plainly pled the specific facts surrounding the prior Federal judgment entered in Dianna Carlson’s suit as well as the filing of the Us pendens notice. This pleading complied with the requirements of section 2 — 613(d) of the Code of Civil Procedure concerning the pleading of affirmative defenses. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613(d); First National Bank v. Village of Mundelein (1988), 166 Ill. App. 3d 83, 519 N.E.2d 476.) Further, legal arguments addressing effects of the Us pendens notice and possible res judicata effects of the Federal suit were specifically raised in the Knodles’ written arguments filed for the trial court’s consideration as well as in the oral arguments made at the hearing before the trial court entered its judgment. The question of whether the prior Federal suit barred Ms. Jeffrey’s attempts at relief in the State courts under the doctrine of res judicata or Us pendens is properly before this court. First National Bank v. Village of Mundelein (1988), 166 Ill. App. 3d 83, 519 N.E.2d 476.

Initially, we address an issue of Federal law upon which the trial court was in error. The trial court incorrectly assumed that improper notice to the taxpayer rendered the tax sale and tax deed issued based thereon absolutely void and therefore a nullity. Failure to give proper notice of a tax sale to a delinquent taxpayer of a tax sale under section 6335 of the IRC (26 U.S.C. §6335 (1982)) does not render the tax sale absolutely void but merely voidable at the option of the taxpayer. (Reece v. Scoggins (5th Cir. 1975), 506 F.2d 967 (improper notice renders tax sale voidable ab initio); Johnson v. Gartlan (4th Cir. 1973), 470 F.2d 1104 (taxpayer’s action of cashing check issued by IRS representing proceeds of tax sale served to ratify prior actions of IRS and validate IRS tax sale which failed to comply with notice requirements of section 6335); Ringer v. Basile (D. Colo. 1986), 645 F. Supp. 1517 (court may set aside tax sale where no notice pursuant to section 6335 was given); Bartell v. Riddell (S.D. Cal. 1962), 202 F. Supp. 70 (failure to give notice under section 6335 gives taxpayer right to avoid sale and such right may be relinquished for valuable consideration).) In her Federal suit, Dianna Carlson, among other relief, was asking the district court to declare the tax sale invalid based upon the IRS’s failure to give her notice of the tax sale pursuant to section 6335. The district court did not enter any order which invalidated the IRS’s tax sale. The district court preliminarily enjoined the issuance of a tax deed. This injunction ceased to exist upon the parties’ stipulated dismissal with prejudice, and a tax deed from the district director of the Internal Revenue Service was issued to the Knodles and recorded. Dianna Carlson’s dismissal of the Federal suit with prejudice under Federal Rule of Civil Procedure 41(a)(l)(ii), which suit had sought to assert her right to have the tax sale declared invalid, prior to the entry of a final order or judgment declaring the tax sale invalid, served to validate the IRS’s tax sale to the Knodles. (See Johnson v. Gartlan (4th Cir. 1973), 470 F.2d 1104; cf. Bartell v. Riddell (S.D. Cal. 1962), 202 F. Supp 70.) The issue before this court on appeal is to what extent do the doctrines of res judicata and lis pendens apply to Ms. Jeffrey’s attempts to raise in State court the question of improper notice to her predecessor in interest, Dianna Carlson, where Dianna Carlson raised the same issue in her prior Federal suit which was dismissed with prejudice.

First, we address the effect of Dianna Carlson’s recording of a lis pendens notice of the Federal suit. The common-law doctrine of lis pendens provided that anyone who purchased or otherwise acquired an interest in real property involved in litigation took subject to the outcome of the litigation as if he had been a party to the litigation from the outset. (Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032.) Under the common-law lis pendens doctrine as codified in 1917, the mere filing of the complaint served as constructive notice to any subsequent purchaser and bound the purchaser to the outcome of the pending litigation. (Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032.) This rule led to harsh results due to its binding of third-party purchasers without notice, and in 1963, the legislature amended the 1917 lis pendens statute to provide that the doctrine did not take effect until notice of a pending suit is filed with the office of the recorder of deeds in the county in which the real estate is located. (Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032.) The doctrine of lis pendens as codified serves to: (1) avoid endless litigation of property rights precipitated by transfers of interests; (2) protect parties to the litigation from persons who acquire an interest in the subject matter of the litigation during the pendency of litigation such as would preclude the court from granting the relief requested; and (3) protect purchasers by giving them notice that the land which they are buying might be affected by a judgment entered in a pending suit by which they could be bound. Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032.

The current version of the lis pendens statute as well as the one in effect during the pendency of the Federal suit provided that upon filing of a lis pendens notice, subsequent purchasers were charged with constructive notice of the underlying proceedings and were bound as if a party to those proceedings, provided service of process is made upon a party defendant within six months of filing the complaint. (E & E Hauling, Inc. v. County of Du Page (1979), 77 Ill. App. 3d 1017, 396 N.E.2d 1260; Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1901.) The propriety of filing a lis pendens notice of a Federal suit is a matter controlled by State law. (Hamilton v. Smith (10th Cir. 1986), 808 F.2d 36.) The lis pendens statute in Illinois provides:

“This Section authorizes a notice of any of these actions concerning real property pending in any United States district court to be recorded and indexed in the same manner and in the same place as herein provided with respect to notices of such actions pending in courts of this State.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1901.)

Under the Illinois lis pendens statute, the properly recorded lis pen-dens notice of the Federal suit involving the subject property filed by Dianna Carlson bound Ms. Jeffrey as a subsequent purchaser to the outcome of Dianna Carlson’s Federal suit which sought, among other relief, to set aside the sale due to improper notice. (O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 357 N.E.2d 472.) The result of applying the lis pendens doctrine, as codified, to Ms. Jeffrey is to treat her as if she were a party to the Federal suit in which Dianna Carlson contested the validity of the tax sale to the Knodles based on a lack of notice. If res judicata applies to bar subsequent relitigation or other collateral attacks upon the judgment entered in the Federal suit between Dianna Carlson and the Knodles, the doctrine of lis pen-dens serves to extend the res judicata effects of the Federal judgment to the subsequent purchaser, Ms. Jeffrey. See O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 357 N.E.2d 472 (purchaser subsequent to City’s filing of lis pendens notice, who purchased during pendency of appeals from judgment entered in favor of purchaser’s predecessor in interest, is bound by judgment of appellate court entered in favor of City and against purchaser’s predecessor in interest, even though purchaser was never made a party to the proceedings).

The doctrine of res judicata provides that a final judgment on the merits by a court of competent jurisdiction is conclusive on the rights of the parties and their privies and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. (In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 511 N.E.2d 895.) The doctrine of res judicata serves to promote judicial economy by requiring parties to litigate, in one case, all rights arising out of the same set of operative facts and further prevents the unjust burden that would result if a party would be forced continually to relitigate what is essentially the same case. (In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 511 N.E.2d 895.) Res judicata should only be applied where fairness and justice require and only to facts and conditions as they existed at the time judgment was entered. Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143.

The first element of res judicata requires us to determine if the district court’s dismissal with prejudice by stipulation of the parties pursuant to Federal Rule of Civil Procedure 41(aXl)(ii) is a final judgment on the merits by a court of competent jurisdiction for purposes of applying the doctrine of res judicata in Illinois courts. Initially, we note that the district court has jurisdiction to decide the issues concerning title to the subject property. (Bartell v. Riddell (S.D. Cal. 1962), 202 F. Supp. 70 (where property is taken or detained under Federal revenue laws, the district court within whose district the property is located has jurisdiction to decide claims to title and award of the seized property to the rightful owner); 28 U.S.C. §1331 (1982).) In Illinois, a State court order dismissing a suit with prejudice is considered a final judgment on the merits for purposes of applying res judicata. (Pick v. Pick (1978), 58 Ill. App. 3d 357, 374 N.E.2d 689.) Similarly, in the Federal courts, a dismissal with prejudice entered by stipulation of the parties pursuant to Federal Rule of Civil Procedure 41(a)(l)(ii) is considered a final judgment on the merits for purposes of applying the doctrine of res judicata in Federal courts. (Lawlor v. National Screen Service Corp. (1955), 349 U.S. 322, 99 L. Ed. 1122, 75 S. Ct. 865; Astron Industrial Associates, Inc. v. Chrysler Motors Corp. (5th Cir. 1968), 405 F.2d 958; Donovan v. United States Postal Service (D.D.C. 1981), 530 F. Supp. 894).) We see no reason why the district court’s dismissal with prejudice should not be considered a final judgment on the merits for purposes of applying the doctrine of res judicata in Illinois courts. Whether or not the stipulation of dismissal with prejudice by Dianna Carlson’s attorney was accidental or unintentional, as suggested by Ms. Jeffrey on appeal, is not a fact we will speculate upon, nor is it relevant to a determination of whether the judgment of dismissal operates as a bar to the State court suit. (Bronstein v. Kalcheim (1984), 126 Ill. App. 3d 643, 467 N.E.2d 979 (whether dismissal of prior action by trial court was erroneous is not to be considered in determining whether the dismissal, under doctrine of res judicata, barred subsequent suit).) The proper recourse would be to attack directly the dismissal order in the district court or by appeal in the Federal courts, not collaterally, in a subsequent State court suit. See Bronstein v. Kalcheim (1984), 126 Ill. App. 3d 643, 467 N.E.2d 979.

Next, we address whether the State court suit ■ involves the same cause of action. Where the underlying facts and the relief sought in both actions are substantially the same, the causes of actions are considered the same for purposes of res judicata. (In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 511 N.E.2d 895.) The Federal suit involved the factual issue of whether proper notice of the tax sale was given to the delinquent taxpayer, Dianna Carlson, as required under section 6335 of the IRC (26 U.S.C. §6335 (1982)). Dianna Carlson sought to prevent the issuance of a tax deed to the purchasers, the Knodles, and ultimately to have the tax sale declared void due to a lack of proper notice. In the instant suit filed in State court, Ms. Jeffrey also raises as her defense and as the basis of her counterclaim the issue of whether the tax sale and resulting tax deed are void due to the lack of notice to her predecessor in interest, the delinquent taxpayer, Dianna Carlson. Both actions seek to contest the Knodles’ interest in the subject property based on the same facts concerning improper notice to the delinquent taxpayer of the tax sale of the taxpayer’s property. We find the cause of action involved in the instant suit to be identical to the cause of action asserted against the Knodles in the prior Federal suit filed by Dianna Carlson.

The last requirement before the doctrine of res judicata can be applied is that the two suits must involve the same parties or their privies. (In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 511 N.E.2d 895.) In the cause of action filed in State court and now before us on review, the Knodles are the parties who purchased the subject real property at the IRS tax sale, after the IRS seized the subject real property from the delinquent taxpayers, Dianna Carlson and William Hill. Ms. Jeffrey is the party who purchased the subject real property from the delinquent taxpayers. In the prior Federal suit filed by Dianna Carlson, the Knodles were also the parties who were present as purchasers at the IRS tax sale of the subject real property and whose purchase and interest in the property was contested by Dianna Carlson based on a lack of notice of the IRS tax sale. As to the Federal suit, Ms. Jeffrey may be considered for purposes of applying res judicata both a party and in privity with a party to the Federal suit. First, as previously discussed, the doctrine of lis pendens binds Ms. Jeffrey to the Federal suit involving the subject real property as if she were a party to the Federal suit from the outset. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1901.) Second, the concept of privity within the doctrine of res judicata contemplates a mutual or successive relationship or interest in the same property rights which were the subject matter of the prior litigation. (Bonanno v. La Salle & Bureau R.R. Co. (1980), 87 Ill. App. 3d 988, 409 N.E.2d 481.) The requirement of the same parties or their privies arises because the purpose underlying res judicata of avoiding repetitious litigation is served when the doctrine is applied to parties or those in privity with parties, who have litigated or had an opportunity to litigate the same matters in a court of competent jurisdiction. (Sweeting v. Campbell (1954), 2 Ill. 2d 491, 119 N.E.2d 237 (doctrine of res judicata applied to successor in interest not predecessor in interest).) One manner in which privity arises is by purchasing a property which was the subject matter of a prior suit. (Varley v. Pickens (1981), 98 Ill. App. 3d 884, 424 N.E.2d 981.) By purchasing the subject property from Dianna Carlson, who was a party to the prior Federal suit, Ms. Jeffrey is in privity with a party to the prior Federal suit for purposes of res judicata. All elements of the doctrine of res judicata being present, Ms. Jeffrey is precluded from raising in her counterclaim or defense the issue of whether improper notice to Dianna Carlson allows the trial court to invalidate the IRS tax sale and the tax deed issued as a consequence thereof. (In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 511 N.E.2d 895; cf. In re Application of County Treasurer (1982), 92 Ill. 2d 400, 442 N.E.2d 216 (Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 747)) (evidences policy favoring incontestability of tax deeds, and tax deed issued as consequence of tax sale was not subject to collateral attack based upon errors in notice of tax sale but only in cases where fraud is proved or the judgment is void may tax deed be attacked collaterally or by a section 2 — 1401 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401)).) Finally, the judgment of the Federal court was not void, nor is there any allegation of fraud which would prevent the application of res judicata in the instant case. Cf. Anderson v. Anderson (1942), 380 Ill. 435, 44 N.E.2d 54; Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 452 N.E.2d 1383 (Federal courts narrowly define void Federal judgments to promote finality of Federal judgments, and Federal court judgment is not void merely because it is erroneous).

Ms. Jeffrey contends that even if the tax deed issued to the Knodles is not void, the warranty deed to Ms. Jeffrey from Dianna Carlson and William Hill was recorded first, and, therefore, Ms. Jeffrey’s deed has priority over the Knodles’ tax deed. (Ill. Rev. Stat. 1987, ch. 30, par. 29.) There is no merit to Ms. Jeffrey’s priority argument. The statute relied upon by Ms. Jeffrey provides:

“All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 30, par. 29.)

Ms. Jeffrey is not a subsequent purchaser without notice. First, the recordation of the lis pendens notice by Dianna Carlson in August 1982 put Ms. Jeffrey on constructive notice that the deed she received in November 1983 from Dianna Carlson might be affected by the pending Federal suit involving the Knodles. Second, the Knodles recorded the certificate of sale on May 20, 1982, issued after they had purchased the subject property at the tax sale which served to put subsequent purchasers, such as Ms. Jeffrey, on notice of their interest in the property. Glen Ellyn Savings & Loan Association v. State Bank (1978), 65 Ill. App. 3d 916, 382 N.E.2d 1267; Ill. Rev. Stat. 1987, ch. 30, par. 29.

The judgment of the circuit court finding the tax deed issued to the Knodles void and quieting title to the subject property in favor of Ms. Jeffrey, free and clear of the claims of the Knodles, is reversed and the cause is remanded to allow further proceedings on count II of the Knodles’ complaint seeking recovery of rents.

Reversed and remanded.

UNVERZAGT, P.J., and REINHARD, J., concur.