Frandsen v. Anderson
| Decision Date | 07 April 1969 |
| Docket Number | Gen. No. 68--68 |
| Parties | Niels D. FRANDSEN, Marie J. Frandsen, Henning D. Frandsen, and Niels D. Frandsen for the Use and Benefit of Marie J. Frandsen, Jane Frandsen, a minor, Karen Frandsen, a minor, and Gayle Frandsen, a minor, by their mother and next friend, Marie J. Frandsen, Plaintiffs-Appellees, v. John R. ANDERSON et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Snyder, Clarke, Dalziel, Holmquist & Johnson, Hall, Meyer, Fisher, Holmberg, Snook & May, Waukegan, for appellants.
Diver, Ridge, Brydges & Bollman, Waukegan, for appellees.
This action involves the propriety of a Section 72 (Ill.Rev.Stat.1967, ch. 110, par. 72) petition, filed in this action by Gates W. Clancy, an attorney. He was not named as a party in the proceeding.
The original action arose out of an automobile accident which occurred in Lake County in November, 1962. The plaintiffs--Niels D. Frandsen, as driver, and his family, as passengers--were riding in the Frandsen car, which was involved in a collision with a car driven by John R. Anderson.
In September, 1963, the plaintiffs filed an amended complaint, which joined as additional defendants persons who allegedly sold intoxicating liquor to John R. Anderson on the date of the accident, or who owned some interest in the taverns in question. Among the additional defendants were Mary C. Morgan and Stanley Morgan, her husband (subsequently deceased), who were alleged to have been 'owners in part, and contract sellers' of a certain tavern known as Morgan's Double O Tap. The contract purchasers of the tavern, John and Gladys Marie Fredericks, were also joined as defendants.
On November 12, 1963, Clancy filed his appearance for the Morgans, and also filed an answer to the amended complaint on their behalf, wherein it was admitted that the Morgans 'were and still are the owners, in part, and contract sellers of the premises' in question.
On November 22, 1963, the plaintiffs filed a second amended complaint which joined additional dramshop defendants. The allegations in the second amended complaint, with reference to the Morgans, were identical with those made in the amended complaint, to which answer had been filed by Clancy, on their behalf. A copy of the second amended complaint was mailed to Clancy by the attorneys for the plaintiffs.
Clancy filed an answer thereto for some of the newly-joined defendants, but did not answer the second amended complaint on behalf of the Morgans.
On March 31, 1965, the Circuit Court of the Seventh Judicial Circuit, Sangamon County, entered an order restraining the Lincoln Casualty Company, its officers, agents, directors, employees and all other persons, from transacting any company business or disposing of its assets or property until further order of the court. Lincoln was the insurer for the Morgans.
On April 21, 1965, Clancy notified the Morgans by letter that Lincoln had been enjoined from conducting any further business; that, as the attorney retained by Lincoln, he could not further represent them in that case; and that, if they wished to have him continue to represent them, they should contact his office within thirty days concerning arrangements for the payment of his fees.
On June 7, 1965, Clancy asked leave to withdraw as attorney for the dramshop defendants whom he represented--including the Morgans. The court refused such request. Clancy then filed a motion to vacate the order of June 7, which recited the foregoing pertinent facts. On June 11, 1965, the court heard the motion to vacate, and refused the request because Clancy claimed an attorney's lien on his files and would not turn them over to other counsel for the dramshop defendants without an arrangement for paying his fees. Neither the Morgans, nor anyone on their behalf, requested their file and, after June 11, 1965, Clancy made no further appearance for them until February 9, 1968, when he filed the Section 72 petition in question.
On June 28, 1965, the driver of the other automobile and its owner were dismissed from the proceeding upon payment of $20,000 to Niels D. Frandsen and Marie J. Frandsen. In October of 1965, the remaining dramshop defendants, other than the Morgans, were also dismissed, and the sum of $22,000, which was received from them, was allocated by the court to Niels D. Frandsen and Marie J. Frandsen, individually and as guardian of Jane, Karen and Gayle Frandsen, minors.
Counts III, IV, V and VI, of the seconded amended complaint, which related to the Morgans, prayed judgment against them and in favor of the following named plaintiffs, in the following amounts:
Niels D. Frandsen, for personal injuries, $15,000
Niels D. Frandsen, for property damage $15,000;
Niels D. Frandsen, for the use and benefit of his wife,
Marie J. Frandsen, and his three children,
for loss of support, $20,000;
Marie J. Frandsen, for personal injuries $15,000.
On February 9, 1966, the court entered a default judgment against the Morgans for failure to answer the second amended complaint, and on that date, evidence was offered before a jury, which assessed damages and returned verdicts in favor of the plaintiffs and against the defendants. These verdicts were reduced by the court, and judgment was entered against the Morgans and in favor of the plaintiffs, as follows:
Niels D. Frandsen $30,000;
Marie J. Frandsen 15,000;
Marie J. Frandsen
(for loss of support) 5,000;
Jane Frandsen 5,000;
Karen Frandsen 5,000;
Gayle Frandsen 5,000.
On March 25, 1966, Attorney Charles M. May, who then represented Mary C. Morgan, wrote to Clancy, advising him of the default judgment and requested his assistance in vacating the judgment. Clancy replied by letter which stated: 'There is no responsibility insofar as this firm is concerned. The entire responsibility rests with the client failing to protect their rights, if any, based on notice previously given.
On April 7, 1966, May filed a Section 72 petition on behalf of Mary Morgan asking that the default judgment be vacated and set aside. And, on April 8, 1966, May again wrote to Clancy, advised him of the hearing date on the petition and asked that he 'be present at the hearing and present testimony that would be material to the issue.' Clancy replied by letter dated April 12, which stated: 'Your client chose to ignore our direction and is entirely responsible for any problem that now esists.' The petition was amended, heard and denied on April 15, 1966, and Clancy did not attend the hearing. No appeal was ever taken from the order denying Mary Morgan's petition to vacate the judgment.
At the hearing, Attorney May pointed out 'that there is a serious and substantial question that the Morgan's ownership or alleged ownership of this property puts them in a position whereby they could be held responsible under the Illinois Dram Shop Act.'
On August 15, 1966, Mary Morgan filed a suit against Gates W. Clancy for malpractice arising out of the entry of judgment against her on February 9, 1966, and on February 9, 1968, Clancy filed a Section 72 petition, as one of her attorneys of record, to set aside and vacate the judgment. This petition was heard and denied by order entered April 3, 1968. Clancy appealed from this order.
He urges that the issue on review is whether the status of the Morgans, as contract sellers, without either possession or control of the tavern, will support a judgment under the Dram Shops Act. However, we face several threshold issues which must be determined before we reach the issue presented by Clancy. They are:
1. Did Clancy have standing to bring the Section 72 petition, and does he have standing to prosecute this appeal?
2. Did Clancy establish facts in the trial court showing that he was diligent in preventing the entry of the default judgment against the Morgans, and in...
To continue reading
Request your trial
-
Reilly's Estate, In re
...will derive benefit from its reversal, or who is competent to release error can seek relief under section 72. (Frandsen v. Anderson (1969), 108 Ill.App.2d 194, 247 N.E.2d 183.) Thus, in Frandsen, the court held that an attorney sued by his client for malpractice had no standing to have set ......
-
People v. Lawton
...by this section aids the court in evaluating the propriety of a petition under this section"), citing Frandsen v. Anderson, 108 Ill.App.2d 194, 200-01, 247 N.E.2d 183 (1969). Section 2-1401 abolished the common law writs of coram nobis and coram vobis, which served to correct errors of fact......
-
Hurlbert v. Brewer
...465; see also Clayton v. Mimms & Co., 68 Ill.App.3d 443, 445, 25 Ill.Dec. 181, 386 N.E.2d 452, 454 (1979); Frandsen v. Anderson, 108 Ill.App.2d 194, 201, 247 N.E.2d 183, 187 (1969). Additionally, we note that, while the case of Browning, Ektelon Division v. Williams, 256 Ill. App.3d 299, 30......
- G.M. Sign, Inc. v. Schane