Elfman v. Evanston Bus Co.

• Decision Date: 06 August 1962
• Docket Number: Gen. No. 48483
• Citation: 36 Ill.App.2d 469,184 N.E.2d 787
• Parties: Sarah ELFMAN, Plaintiff-Appellee, v. EVANSTON BUS COMPANY, a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 787

184 N.E.2d 787

36 Ill.App.2d 469

Sarah ELFMAN, Plaintiff-Appellee, v. EVANSTON BUS COMPANY, a corporation, Defendant-Appellant.

Gen. No. 48483.

Appellate Court of Illinois, First District, First Division.

Aug. 6, 1962.

Rehearing Denied Sept. 6, 1962.

Stephen Love, Chicago, for defendant-appellant.

Seymour Velk and Sherwin J. Malkin, Chicago, for plaintiff-appellee.

ENGLISH, Justice.

Defendant appeals from an order striking and dismissing its petition, filed under Section 72 of the Civil Practice Act, to vacate a default judgment.

On March 7, 1960 plaintiff filed her statement of claim against defendant, Evanston Bus Company, and Wanzer Dairy Company seeking damages for personal injuries sustained by her on September 6, 1958 while a passenger on defendant's bus at the time of a collision between the bus and a Wanzer milk truck. Plaintiff demanded a jury.

Both defendants were duly served with summons returnable March 22, 1960. On that date, an order of default was entered against both defendants for failure to appear.

On stipulation of plaintiff and Wanzer, the default order against Wanzer was vacated by court order on April 23, 1960 and Wanzer was permitted to file its appearance and answer instanter. The same order provided that 'this cause be and the same hereby is postponed and set for pretrial conference on July 22, 1960.'

By further stipulation of plaintiff, and on her motion, an order was entered on May 18, 1960 dismissing the cause as to Wanzer. Wanzer is, therefore, not concerned with this appeal.

On the same day, the cause as to defendant, Evanston Bus Company, was submitted to a jury. After hearing evidence and argument of plaintiff's counsel, defendant being absent, a verdict was returned against defendant, assessing plaintiff's damages at $10,000. Judgment was entered on the verdict.

Execution was served on defendant on June 20, 1960, and on July 14, 1960 defendant filed its petition to vacate the judgment. Later, through the substituted attorney who is now representing defendant in this court, an amended petition and amendments thereto were filed. Plaintiff filed her motion to strike and dismiss, and, after hearing, the order appealed from was entered on March 6, 1961.

Before coming to the questions arising from Section 72, defendant argues that at the time of the ex parte jury trial there was no default order against defendant, and that, therefore, the court was without authority to proceed as it did. This point rests on the proposition that the order of March 22 defaulted both defendants as a unit, and that the order of April 23 consequently vacated the default as to both defendants, requiring a new order of default against Evanston Bus Company if that defendant were to be effectively defaulted.

We find no validity in this argument. The language of the court was that 'the order of default heretofore entered against Wanzer Dairy Co. on March 22, 1960 be and the same hereby is vacated.' These words are clear and unambiguous. The applicability of the order to one, and not both, of the defendants is unmistakably authorized by Section 50(7) of the Civil Practice Act. ¹ Furthermore, this point was not raised in the trial court, and, therefore, cannot be used by this court as a ground for reversal.

Defendant's amended petition and the two amendments thereto are, in combination, complete in themselves, and supersede the original petition. In our consideration of the sufficiency of defendant's pleading, we shall, therefore, disregard the original petition and answer, and the parts of plaintiff's arguments which are based thereon. (W. P. Iverson & Co., Inc. v. Dunham Mfg. Co., 18 Ill.App.2d 404, 425, 152 N.E.2d 615; Riddle v. Riddle, 23 Ill.App.2d 260, 161 N.E.2d 866.)

The issue of the legal sufficiency of defendant's petition was properly raised by the filing of a motion to strike (Boyle v. Veterans Hauling Line, 29 Ill.App.2d 235, 239, 172 N.E.2d 512) and such a motion must be taken to have admitted all well-pleaded allegations of fact. (Lichter v. Scher, 4 Ill.App.2d 37, 41, 123 N.E.2d 161.)

Further in regard to the rules governing determination of appeals in this type of case, we quote from the opinion in Harder v. Advance Transportation Co., Inc., 26 Ill.App.2d 439, 441, 168 N.E.2d 777, 778:

'In a case of this character, involving a default judgment, if the Court has jurisdiction of the parties and of the subject matter, the Trial Court's action in declining to vacate a judgment after 30 days from the entry thereof will not be reversed unless there has been an abuse of its sound judicial discretion, and the burden was on the defendant-appellant to show affirmatively both due diligence to protect its rights or lack of negligence on its part in not presenting its alleged defense in apt time, and a meritorious defense,--a showing of an alleged meritorious defense, alone, is not sufficient. (Citing cases.) A motion to set aside a final judgment of a court having jurisdiction is of serious import and the maintenance of stability requires it be so treated.'

See also Lamoreaux v. Havranek, 25 Ill.App.2d 51, 165 N.E.2d 547; Dann v. Gumbiner, 29 Ill.App.2d 374, 173 N.E.2d 525; Sarro v. Illinois Mut. Fire Ins. Co., 34 Ill.App.2d 270, 181 N.E.2d 187.

The following allegations are set forth, in substance, in defendant's amended petition (filed July 22, 1960):

'Defendant's attorney is a member of a law firm which is general counsel for defendant, and he has handled its personal injury litigation for many years.

'Defendant's attorney had negotiated with the attorney for plaintiff commencing August 1, 1959 with a view to agreeing upon a settlement. On September 1, 1959 plaintiff's special damages were stated to be $259 and a settlement demand of $4500 was made. This was rejected by defendant's attorney as excessive. Negotiations continued 'intermittently thereafter.'

'When summons was served upon defendant in March, 1960, it was sent to defendant's attorney 'for appropriate action.' Believing that a settlement agreement could be reached, and that opposing counsel would not take advantage of him, defendant's attorney did not file an appearance.

'On April 27, 1960 defendant's attorney checked the case records at the clerk's office, noted the order of April 23, 1960 (referred to above) and concluded that the case would not be tried until July 22, 1960; that he would have until that date to negotiate a settlement; and that if an agreement were not reached by that date he would have ample time to file an appearance and pleading for defendant.

'Defendant's attorney is a member of the Illinois General Assembly, and on some thirteen days in May, 1960 (including May 18) he attended a special session in Springfield. He was also out of the state on vacation from July 5 to July 16, 1960.

'Defendant's attorney received no notice of the court proceedings of May 18, 1960. On July 7, 1960 one of his partners received a telephone call from plaintiff's attorney informing him of the entry of judgment on May 18. He then filed the original petition to vacate on July 14, 1960.

'From defendant's investigation of the collision, it has ascertained that plaintiff's damages 'were much less than $10,000,' and 'that it is doubtful whether (defendant) was guilty of any negligence that was the proximate cause of said collision and (defendant) denies that it was guilty of any such negligence.''

In the first amendment to defendant's petition (filed August 12, 1960) it is alleged, in substance:

'On May 18, 1960 plaintiff and her husband testified to $4,028.85 in medical expenses as a direct result of the collision. No other witnesses testified.

'Through their false testimony, plaintiff and her husband conspired to practice fraud on the court, because most of the medical expenses were attributable to other causes. (Photostatic copies of various hospital bills of plaintiff were attached as exhibits.)

'The first knowledge that defendant or its attorneys had of the ex parte judgment came with the service of execution on June 20, 1960.'

In the second amendment to defendant's petition (filed September 23, 1960) it is alleged, in substance:

'The failure of defendant's attorney to file its appearance at the proper time was 'excusable neglect.'

'The summons (returnable March 22, 1960) was received from defendant by its attorney on March 17, 1960, but he did not file an...