Danforth v. Checker Taxi Co.

• Decision Date: 18 September 1969
• Docket Number: Gen. No. 53009
• Citation: 114 Ill.App.2d 471,253 N.E.2d 114
• Parties: Rebecca L. DANFORTH, Plaintiff-Appellee, v. CHECKER TAXI COMPANY, Inc., et al., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 114

253 N.E.2d 114

114 Ill.App.2d 471

Rebecca L. DANFORTH, Plaintiff-Appellee, v. CHECKER TAXI COMPANY, Inc., et al., Defendant-Appellant.

Gen. No. 53009.

Appellate Court of Illinois, First District, Third Division.

Sept. 18, 1969.

Jesmer & Harris, Chicago, Richard C. Smilgoff, Chicago, of counsel, for appellant.

Sheldon Hodes, Chicago, Alan J. Scheffres, Chicago, of counsel, for appellee.

SCHWARTZ, Justice.

In a proceeding under Section 72 of the Civil Practice Act (Ill.Rev.Stat. ch. 110, § 72 (1967)) the trial court vacated an order dismissing a personal injury suit because of the failure of the plaintiff to answer interrogatories submitted by the defendant in accordance with the provisions of Supreme Court Rule 219(c) (Ill.Rev.Stat. ch. 110A, § 219(c) (1967)). The court found that there was negligence on the part of plaintiff's attorney in failing to comply with the court's orders, but evidently considered dismissal of the suit too drastic a remedy and instead entered an order vacating the judgment upon condition that plaintiff pay $100 to the Clerk of the Court as costs and $100 to the defendant for its expenses and attorney's fees. The Clerk accepted, but the defendant refused the amount tendered and thereupon the court entered the order of vacation. The events leading to entry of the order are stated in the order and we here present and substance thereof.

On February 20, 1967 the plaintiff filed suit for personal injuries against the Checker Taxi Company (Checker). On March 27, 1967, after filing its appearance and answer in due course Checker served plaintiff with written interrogatories to be answered by her and filed a copy thereof with the court. Pursuant to Supreme Court Rule 213(c) (Ill.Rev.Stat. ch. 110A, § 213(c) (1967)) either a sworn answer or an objection to each interrogatory was required to be filed Within twenty-eight days after service on the plaintiff. Plaintiff did not answer. On April 27, 1967 defendant served plaintiff with notice that her answers were overdue and filed a copy of the notice with the court. Plaintiff still did not answer and the defendant served her with a notice of motion supported by affidavit that on August 4, 1967 a motion would be made to strike the complaint and dismiss the cause. On that day the court entered an order requiring the interrogatories to be answered on or before September 1, 1967. Plaintiff failed to obey the order and defendant again served her with a notice of motion supported by affidavit for a hearing on September 26, 1967 to strike the complaint and dismiss the cause. The plaintiff denied receiving the notice and was not present at the hearing on the motion. On September 26 the court entered an order requiring plaintiff to answer the interrogatories on or before October 24, 1967 and the matter was continued without further notice to October 25th. Plaintiff failed to comply with that order and on October 25, 1967 the matter again came before the court and again neither the plaintiff nor her attorney were present. Thereupon the court dismissed the suit on motion of defendant. The only denial by plaintiff that notices were received, as hereinbefore stated, was with respect to the notice of September 26, 1967 and notwithstanding that denial, the court found that the notice was in fact served on plaintiff. We accept the court's finding in that respect.

On January 2, 1968 the plaintiff filed her petition to vacate the order of dismissal and to reinstate the cause pursuant to Section 72. The defendant replied and the matter was set for hearing on February 13, 1968. Plaintiff did not appear even then and the hearing was continued to the following day. On February 14th the matter was continued to the 16th, at which time it was taken under advisement and on February 26, 1968, pursuant to leave of court plaintiff filed her answers to defendant's interrogatories and the court entered an order vacating the order of October 25, 1967 on the conditions hereinbefore set forth.

Defendant contends that relief under Section 72 of the Civil Practice Act is not available to plaintiff because her petition does not adequately allege that she was free from fault in failing to inform the court of facts which would have prevented rendition of the judgment, and that even if the sufficiency of the petition is admitted, the court's finding of negligence on the part of plaintiff precludes relief.

Section 72 is a proceeding which took the place of those extraordinary writs in which relief was granted after the expiration of the term. It is a proceeding separate and apart from the proceeding in which the judgment complained of was rendered. In enables a party to bring before the court facts not appearing of record which, If known to the court at the time judgment was entered, would have prevented its rendition. Brockmeyer v. Duncan, 18 Ill.2d 502, 165 N.E.2d 294; Glenn v. People, 9 Ill.2d 335, 137 N.E.2d 336. A litigant may not avail himself of the remedy provided for in Section 72 unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Exczuk v. Chicago Transit Authority, 39 Ill.2d 464, 236 N.E.2d 719; ...