Carroll & Neiman, Inc. v. Silverman

• Decision Date: 25 April 1975
• Docket Number: No. 60734,60734
• Citation: 28 Ill.App.3d 289,328 N.E.2d 205
• Parties: CARROLL AND NEIMAN, INC., a corporation, Plaintiff-Appellant, v. George SILVERMAN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 205

328 N.E.2d 205

28 Ill.App.3d 289

CARROLL AND NEIMAN, INC., a corporation, Plaintiff-Appellant, v. George SILVERMAN, Defendant-Appellee.

No. 60734.

Appellate Court of Illinois, First District, Fifth Division.

April 25, 1975.

Martin A. Smith, Chicago, for plaintiff-appellant.

William V. Johnson, Chicago, for defendant-appellee.

SULLIVAN, Justice.

Plaintiff appeals from an order denying its Section 72 ¹ petition which sought to vacate an order dismissing its action. The sole issue concerns the sufficiency of the petition.

Plaintiff brought an action seeking to recover a real estate brokerage commission. Defendant answered and filed a jury demand. From defendant's statement of facts it appears that, pursuant to the practice then existing, this case was assigned to the jury calendar in courtroom 1304 and that, sometime before March, 1973, all the odd-numbered jury cases, which included the instant case, were transferred from courtroom 1304 to 1306. We note from the record that on March 19, 1973 this cause was dismissed for want of prosecution. On May 1, 1973 plaintiff presented, in room 1306, a motion to vacate this dismissal before Judge Goldstein, and an order was entered on that date which vacated the dismissal and allowed defendant to withdraw his answer and file a motion to dismiss. Defendant then served notice on May 18, 1973 that he would move for a hearing on this motion to dismiss on May 25, 1973, in room 1304. Plaintiff requested a continuance and was subsequently informed by his law clerk, or by defendant's attorney, that the motion was continued to May 31, 1973. This continuance was granted by Judge Goldstein. Plaintiff did not appear on that day, and the motion to dismiss was sustained by order of the same judge, and it was before him that plaintiff presented its Section 72 petition in room 1306.

Subsequently, an amended petition was filed by plaintiff and, in support thereof, plaintiff's attorney attached his affidavit and pages from his diary. In this affidavit he states that (1) defendant notified him there would be a hearing on the motion to dismiss on May 25, 1973 in room 1304, and an entry was made in affiant's diary for that date and room number; (2) he requested a continuance and was informed by defendant's attorney, or his law clerk, that the hearing was continued to May 31, and it was diaried for that date in room 1304; (3) although he does not recall whether he, an associate, or a representative of his office appeared in room 1304 on May 31, an entry was placed in his diary on that date that the hearing was reset for July 6 in Room 1306; (4) on July 6, his law clerk, who was sent to obtain a continuance, made a diary entry that the case was not on the court call that day; (5) he began an annual litigation review approximately March 1, 1974, and in April determined the motion to dismiss had been granted in room 1306 on May 31, 1973; and (6) he was misled by defendant's original notice that the hearing of the motion to dismiss would be in room 1304. After a hearing, at which both parties were present, Judge Goldstein denied the petition.

OPINION

It is plaintiff's contention that its amended petition demonstrated sufficient grounds for relief.

A Section 72 petition, although filed in the original proceeding, is not a continuation thereof but is treated as a new action (Kukuk v. Checker Taxi Company, 13 Ill.App.3d 5, 299 N.E.2d 468) and is subject to the same rules of pleading as any other action (Brockmeyer v. Duncan, 18 Ill.2d 502, 165 N.E.2d 294.) Therefore, it must state adequate grounds for relief and petitioner's entitlement thereto. Mutual National Bank of Chicago v. Kedzierski, 92 Ill.App.2d 456, 236 N.E.2d 336.

Where, as in the present case, defendants did not challenge the sufficiency of the petition by motion to strike or by an answer, they have waived this right (Wilson v. Wilson, 56 Ill.App.2d 187, 205 N.E.2d 636) and, under these circumstances, the only question which a reviewing court can consider with respect to the petition is whether it totally fails to state a cause of action. (DeJarnett v. Roseborough, 94 Ill.App.2d 164, 236 N.E.2d 276; Grizzard v. Matthew Chevrolet, 39 Ill.App.2d 9, 188 N.E.2d 59.) In determining whether a cause of action is alleged here, we are guided by certain considerations; namely, that plaintiff had the duty and obligation to...