Diner's Club, Inc. v. Gronwald
| Decision Date | 16 September 1976 |
| Docket Number | No. 61951,61951 |
| Parties | , 1 Ill.Dec. 928 DINER'S CLUB, INC., Plaintiff-Appellee, v. Robert GRONWALD, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Plaintiff, Diner's Club, Inc., sued defendant to recover $2,487 charged to a credit card which plaintiff issued to defendant. After the defendant failed to answer the complaint or appear for trial, the trial court entered a default judgment against defendant. Defendant then filed several motions to vacate this judgment, all of which motions were ordered denied by the trial court, and this appeal follows.
Defendant contends on appeal that the trial court erred in refusing to exercise its equitable power to vacate the default judgment because defendant appeared Pro se received no notice of plaintiff's subsequent motion, was unlettered in the law involved, and lacked the funds to hire an attorney sooner than he did.
We reverse and remand.
There is essentially no dispute concerning the facts in this case. Plaintiff's complaint was filed on December 21, 1973 and alleged that plaintiff issued its credit card to defendant, that under such credit card the named holder was responsible for all authorized charges made by any bearer, that plaintiff has demanded from defendant payment of $2,487 in authorized charges and that defendant has refused to pay said charges. On April 16, 1974, the trial court ordered defendant to answer the complaint within 20 days. Although defendant never filed an answer to the complaint, he appeared Pro se on May 25, 1974. On November 7, 1974, the trial court, noting defendant's absence, entered a default judgment against defendant in the amount of $2,487.21. Defendant then moved to vacate the default judgment and a hearing on this motion was set for December 6, 1974. Defendant arrived at court on December 6, before the 2:00 p.m. motion call and represented to the court that plaintiff's counsel had agreed that an order be entered vacating the judgment. The trial court then entered an order vacating the judgment. Shortly thereafter, at the 2 o'clock time set for the motion, plaintiff's counsel appeared and advised the court that he had entered into no such agreement with the defendant. The court then entered another order that same day, December 6, vacating the prior order entered that day and ordering defendant to appear in court on December 12, 1974. Defendant failed to appear on December 12 and the official entry of the court for December 12 reads,
On December 20, 1974, defendant, appearing Pro se, presented a motion to vacate the official entry of December 12, 1974. On that same day, plaintiff presented a counter-motion and affidavit for fees in the amount of $175. The cause was continued to January 2, 1975 on which date defendant's motion to vacate was denied. Defendant through an attorney-friend then presented a motion of course to vacate the default judgment dated December 6, 1974. This motion was denied on January 8 and defendant through retained counsel filed a motion on February 26 which cited section 72 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 72) and asked the trial court to vacate the judgment entered November 7, 1974, the order entered December 6, 1974 reinstating the judgment, and the order of January 8, 1975 denying the oral motion to vacate the order of December 6, 1974. Accompanying the above motion was the affidavit of defendant which averred in pertinent part as follows: that defendant was president of the Harwald Company, a corporation, and in that capacity defendant had use of the Diner's Club Membership involved in this litigation; that the Diner's Club charges incurred by defendant were incurred as expenses necessary and relevant to the conduct of the business of the Harwald Company and not for defendant's personal benefit; that prior charges incurred under the credit card involved in this litigation were paid by the Harwald Company; that the Harwald Company is presently involved in bankruptcy proceedings and that defendant has filed with the trustee in bankruptcy a claim for the very same charges involved in this litigation; that this claim is pending undetermined before the trustee, and that the ruling made on this claim could be a complete bar to plaintiff's complaint.
In the above affidavit defendant further averred as follows: that he is a layman not conversant in legal matters and that he took the complaint to an attorney, relied on said attorney to handle the matter, and that without defendant's knowledge, a default judgment resulted; that defendant was without sufficient funds to engage another attorney; that defendant had no notice of the second order entered December 6, nor of the hearing date of December 12.
The trial court ordered that the above motion to vacate dated February 26 be denied and it is from this order that defendant appeals.
Before reaching defendant's argument, we must first decide plaintiff's contention that this court is without jurisdiction to hear this appeal. Plaintiff points out that judgment was entered against the defendant on November 7, 1974, that numerous attempts by defendant to have this judgment vacated were unsuccessful, and that on January 8, 1975 defendant made one of these attempts with the assistance of counsel. Plaintiff argues that since this attempt to vacate the judgment was made more than 30 days after the judgment had been entered it constituted an action under section 72 of the Civil Practice Act. Plaintiff argues that the denial of the motion dated January 8 was a final appealable order and that defendant's failure to file a notice of appeal within 30 days after the denial of this motion renders this court without jurisdiction to hear this appeal. Plaintiff's theory is best set out in Goldstick v. Saporito (1974), 22 Ill.App.3d 621, 317 N.E.2d 774. In that case defendant filed a verified petition in April, more than 30 days after a default judgment was entered against him, asking the court to vacate the judgment. On June 5 the trial court denied the above petition. On June 13 defendant filed another motion to vacate the judgment and this motion was denied. In dismissing defendant's appeal in Goldstick v. Saporito, this court stated that defendant's petition filed in April which was verified and filed more than 30 days after the judgment was entered would be construed as having been filed under section 72 of the Civil Practice Act; that the June 5 order denying the above petition was a final appealable order; and that no appeal having been taken from such order, the court was without jurisdiction to consider...
To continue reading
Request your trial
-
Paul v. Gerald Adelman & Associates, Ltd.
...furtherance of justice.'" Airoom, 114 Ill.2d at 225, 102 Ill.Dec. 368, 499 N.E.2d 1381 (quoting Diner's Club, Inc. v. Gronwald, 43 Ill.App.3d 164, 168, 1 Ill.Dec. 928, 356 N.E.2d 1261 (1976), and Spencer v. American United Cab Ass'n, 59 Ill.App.2d 165, 172, 208 N.E.2d 118 (1965)); see also ......
-
Hirsch v. Optima, Inc.
...furtherance of justice.'" Smith, 114 Ill.2d at 225, 102 Ill.Dec. 368, 499 N.E.2d 1381, quoting Diner's Club, Inc. v. Gronwald, 43 Ill.App.3d 164, 168, 1 Ill.Dec. 928, 356 N.E.2d 1261 (1976); Spencer v. American United Cab Ass'n, 59 Ill.App.2d 165, 172, 208 N.E.2d 118 (1965); Lubbers, 105 Il......
-
Solomon v. Arlington Park/Washington Park Race Track Corp.
...or his agents include Reich v. Breed (1979), 70 Ill.App.3d 838, 27 Ill.Dec. 31, 388 N.E.2d 994, and Diner's Club, Inc. v. Gronwald (1976), 43 Ill.App.3d 164, 1 Ill.Dec. 928, 356 N.E.2d 1261, although both these cases also involved motions under section 50(5) that were initially granted but ......
-
Nenadic v. Grant Hospital
...oral, unverified motions from being construed as section 72 motions are not applicable. See, e. g., Diner's Club Inc. v. Gronwald (1976), 43 Ill.App.3d 164, 1 Ill.Dec. 928, 356 N.E.2d 1261. A section 72 petition is not a continuation of the original proceeding, but a commencement of a new c......