Barkhausen v. Naugher
| Decision Date | 20 January 1947 |
| Docket Number | No. 29539.,29539. |
| Parties | BARKHAUSEN et al. v. NAUGHER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from First Division, Appellate Court, First District, on Appeal from Municipal Court of Chicago; Joseph J. McGarry, Judge.
Action by L. H. Barkhausen and another, doing business as the Doubleby Company, against Wilgus Naugher and another for rent. From a judgment of the Appellates Court, 327 Ill.App. 555, 64 N.E.2d 561, affirming a summary judgment for plaintiffs against named defendant, he appeals.
Reversed and remanded.
Aiken, McCurry, Bennett & Cleary, of Chicago (Charles R. Aiken, of Chicago, of counsel), for appellant.
Bohrer, Blackman & Loman, of Chicago (Maurice M. Loman, of Chicago, of counsel), for appellees.
Plaintiffs, L. H. Barkhausen and Randolph Bahrer, doing business as The Doubleby Co., appellees, obtained a judgment against Wilgus Naugher, defendant-appellant, in the sum of $3813.42, in the municipal court of Chicago. From this judgment said defendant appealed to the Appellate Court which affirmed the judgment. Defendant's petition for leave to appeal to this court was allowed and the cause is here for a further review.
The plaintiffs, as assignees under a lease in which the lessors were the trustees of the estate of Marshall Field and the lessees were J. Wilgus Naugher and Beryl Jacobson, caused a judgment by confession to be entered in the municipal court of Chicago against the lessees. The judgment was for the sum of $4005.92. Subsequently the defendant Naugher filed his petition and amended petition praying that the judgment be set aside.
Defendant Naugher based his amended petition to set aside the judgment on the contention that it was procured by fraud upon a claim to which he had a complete defense; that the lease had been cancelled by agreement of the parties prior to the time of the accrual of the rents claimed and that the premises had been surrendered to the lessors in exchange for a release of the lessees under the lease. An order was entered by the lower court giving defendant leave to appear and defend and ordering that a trial of the cause be had; that the judgment stand as security and that defendant's petition stand as an affidavit of defense. No reply was filed denying the affirmative matter contained in the affidavit of defense. While the cause was pending for trial before a jury, plaintiffs filed a motion for summary judgment supported by the affidavit of the rental agent of the building in which the premises in question were located. The affidavit filed in support of plaintiffs' motion for summary judgment denied each of the facts pleaded by the defendant in his amended petition to vacate the judgment by confession, and denied that there had been any agreement for cancellation of the lease, and stated that there had been no cancellation and release. Defendant then moved to strike said motion and supporting affidavit on the ground that pending before the court were pleadings presenting a controversy as to material facts and issues. It was further contended that such issues of fact were set forth in his petition to vacate the judgment. The court denied defendant's motion to strike and the defendant then answered setting up by reference his affidavit of defense already on file in the cause. The answer was stricken by order of the court for the reason that it was not a counteraffidavit. Thereupon defendant filed an affidavit in opposition to the motion for summary judgment denying the denials contained in the affidavit filed by the plaintiffs in support of their motion for a summary judgment. The municipal court granted plaintiffs' motion for a summary judgment and entered a judgment in favor of plaintiffs for $3813.42. Upon appeal by the defendant to the Appellate Court the summary judgment was affirmed.
Defendant contends that the court was in error in that he had been deprived of his right to a jury trial and that the pleadings show there was a controverted question of fact which should not be determined upon the pleadings without a trial upon the issues involved. The theory of plaintiffs was that there was no issue of fact created by the pleadings of the defendant, and therefore, there was no triable issue to submit to a jury. With this contention we cannot agree. An examination of the affidavit filed in support of plaintiffs' motion for a summary judgment indicates upon its face that there exist disputed questions of fact, particularly as to the cancellation of the lease involved. This affidavit denies the cancellation and in our opinion indicates upon its face that there does exist...
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