Ellman v. De Ruiter
| Decision Date | 22 May 1952 |
| Docket Number | No. 32292,32292 |
| Citation | 106 N.E.2d 350,412 Ill. 285 |
| Parties | ELLMAN et al. v. DE RUITER. |
| Court | Illinois Supreme Court |
Sonnenschein, Berkson, Lautmann, Levinson & Morse, Chicago (Isaac E. Ferguson, Chicago, of counsel), for appellant.
Nathan M. Gomberg, Chicago (Sidney D. Missner, Chicago, of counsel), for appellees.
Estelle Ellman and her husband, Philip Ellman, brought an action against Garrett De Ruiter in the county court of Cook County to recover damages for claims arising from an alleged assault by De Ruiter on Estelle Ellman. On November 24, 1950, defendant was defaulted and judgments were entered against him in favor of each plaintiff for $2000 and costs. More that thirty days after the date upon which the judgments were entered, defendant filed a motion, supported by affidavits, under section 72 of the Civil Practice Act (Ill.Rev.Stat.1949, chap. 110, par. 196), to set aside the judgments on the ground that their entry had resulted both from an error of fact and from excusable mistake. A counteraffidavit and answer was filed by plaintiffs, and upon the pleadings thus made the county court granted the motion and vacated the judgments. The plaintiffs then appealed to the Appellate Court, which court reversed the order of the county court thereby reinstating the judgments. Ellman v. De Ruiter, 344 Ill.App. 557, 101 N.E.2d 630. This court has granted defendant's petition for leave to appeal.
The facts to be gathered from the entire record show that plaintiffs were tenants in a building owned by defendant and that on September 29, 1950, a controversy arose between Estelle Ellman and defendant over the ownership of a mirror. She alleges that defendant pushed her into a stair rail injuring her back, whereas he denies that he touched her. Philip Ellman, the husband, was not present. Soon after the occurrence Estelle filed a criminal complaint against defendant in the Municipal Court of Chicago charging as assault. On Cotober 11, 1950, the court heard evidence in that cause and the arguments of attorney Nathan M. Gomberg, who represented the complaining witness, and of attorney Milford F. Henkel, who represented De Ruiter, then continued the matter until November 14.
The next circumstance occurred on October 25, 1950, when the civil suit for damages arising from the alleged assault was filed in the county court of Cook County. Under separate counts Estelle Ellman claimed $2000 actual damages and $2000 punitive damages, while Philip Ellman claimed $2000 damages apparently for loss of consortium. Gomberg also represented plaintiffs in this action. On the same day a summons was issued bearing a first return date of November 20, 1950, and a second return date of December 4, 1950. The summons was served on defendant on October 31, 1950, twenty days before the first return date. The following day, November 1, defendant took the summons to a firm of lawyers which had no connection with the attorney who was representing him in the criminal matter. There, a docket clerk employed by the firm erroneously recorded the summons as having been served on November 1, 1950. On the same day, still another employee of the firm phoned Gomberg and procured a copy of the complaint which was later returned when additional copies had been made. Because of the erroneous entry made by the docket clerk, it was not until December 4, the second return date, that defendant's attorneys filed an appearance in the civil cause and a motion to dismiss. In the meantime, however, Gomberg, without notice to defendant or his attorneys, appeared in the county court on November 24, at which time defendant was defaulted and the judgments as above described entered against him.
The next incident in the chain of events occurred on December 8, 1950, when there were further proceedings in the criminal matter before the Municipal Court. On that date attorney Robert S. Morris, who was employed by the firm which represented defendant in the civil suit, appeared and introduced himself to the court and to Gomberg, and made an offer of settlement in the civil case. The presiding judge continued the criminal cause to January 30, 1951, to enable the parties to settle their differences. Gomberg, however, without revealing that default judgments had already been entered in the civil action, represented to Morris that he would not be ready to talk settlement until after the first of the year when he would be able to know the outcome of the criminal matter and the extent of Estelle Ellman's injuries. On January 4, 1951, after thirty days from the date of the default judgments had safely passed, Gomberg informed defendant's attorneys by telephone that default judgments had been entered on November 24, 1950.
Within a few days, defendant filed a motion to vacate and set aside the judgments setting forth the facts substantially as heretofore related, and contending that the county court entered the default judgments while under a misapprehension of fact regarding defendant's intention to contest plaintiffs' claims. It is his position that the court's misapprehension was induced by Gomberg's intentional failure to inform the court that a criminal cause was pending or that a firm of attorneys had manifested an intention of defending the civil action by procuring a copy of the complaint from Gomberg. As a further basis for relief, defendant contended that the filing of his appearance and answer on the second return day, instead of the first return day noted in the summons, was due to an excusable mistake, rather than negligence, therefore presenting an adequate ground for vacating the default judgments. One affidavit filed in support of the motion was executed by an attorney named Ferguson, who was also an employee of the firm representing defendant in the civil action, and set forth that when an inquiry was made of the judge who had entered the default judgments, the judge had stated that he was not informed of the criminal action nor of the fact that defendant's attorneys had procured a copy of the complaint. In a counteraffidavit, Gomberg averred that he had informed the judge that a criminal case was pending in which defendant was represented by counsel. His counteraffidavit further set forth that the Chicago Daily Law Bulletin of November 25, 1950, had made public the entry of the judgments against defendant in the civil action.
Since the judge who had entered the default judgments had become ineligible, due to the expiration of his term of office, the motion to vacate was, of necessity, presented to and heard by another judge. Without indicating the exact grounds, the latter judge granted the motion and vacated the judgments.
On appeal, however, the Appellate Court reversed the order of the county court, holding that Gomberg's failure to inform the court of the criminal proceeding and of the fact that a firm of attorneys had procured a copy of the complaint in defendant's behalf, was not the concealment of such facts as would have precluded the court from entering the default judgments. With respect to the error of the docket clerk employed by defendant's attorneys, the Appellate Court held that no act or omission of plaintiff had contributed to the error and that it was not an excusable mistake available as a ground for vacating the default judgments. Having reached its conclusion on the foregoing points, the court concluded its opinion in the following manner: 'However lacking in fairness the conduct of plaintiffs' counsel in the municipal court on December 8, 1950, may have been, such conduct is not ground for vacating the judgments on defendant's petition. The statutory motion substituted for the writ of error coram nobis can only bring before the court rendering the judgment 'matters of fact not appearing of record, which, if known at the time the judgment was rendered, would have prevented its rendition.' Jacobson v. Ashkinaze, 337 Ill. 141 (168 N.E. 647). Matters arising subsequent to the rendition of the judgment cannot be urged. Plaintiffs' counsel wilfully concealed the entry of the default judgments until after the court lost the power to vacate them. This conduct cannot be condoned, but it is not ground for vacating the judgments. Defendant's petition is not addressed to...
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...from a final judgment was sought by writ of error coram nobis filed in the court that rendered the judgment. Ellman v. De Ruiter, 412 Ill. 285, 290, 106 N.E.2d 350 (1952) ; People v. Touhy, 397 Ill. 19, 24, 72 N.E.2d 827 (1947). Generally, a writ was intended to bring to the court's attenti......
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...is addressed to the equitable powers of the trial court when exercise of such power is necessary to prevent injustice. (Ellman v. DeRuiter, 412 Ill. 285, 106 N.E.2d 350.) Urging that this elemental principle does not apply to this case, DRG has cited to us Zeve v. Levy, 37 Ill.2d 404, 226 N......
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