Fitschen v. Bellm Freight Lines, Inc.

• Decision Date: 04 February 1971
• Docket Number: No. 70--31,70--31
• Parties: Walter FITSCHEN, Plaintiff-Appellant, v. BELLM FREIGHT LINES, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 740

266 N.E.2d 740

131 Ill.App.2d 757

Walter FITSCHEN, Plaintiff-Appellant, v. BELLM FREIGHT LINES, INC., Defendant-Appellee.

No. 70--31.

Appellate Court of Illinois, Third District.

Feb. 4, 1971.

Samuel G. Harrod, Eureka, for plaintiff-appellant.

Kavanagh, Scully, Sudow, White & Frederick, Peoria, for defendant-appellee.

SCOTT, Judge.

This appeal stems from an order of the Circuit Court of Peoria County granting the defendant's petition to vacate a default judgment.

The record discloses that after unsuccessful negotiations with a claim adjuster representing the insurance carrier of the defendant, the plaintiff filed a lawsuit for the recovery of damages for injuries sustained while he was an employee of the Keystone Steel and Wire Company. The accident in which the plaintiff was injured occurred when he was loading a truck which was owned and operated by the defendant. The suit was filed on February 24, 1969, and on March 1, 1969, Donald E. Stone, Vice President of the defendant corporation, received from his company's Peoria office a copy of summons in lawsuit Number 69--M--729, the title of which was Walter Fitschen and Keystone Steel and Wire Company, a corporation, vs. Bellm Freight Lines, Inc., a corporation. This summons was forwarded by Mr. Stone to his company's attorneys. On March 3, 1969, a second summons was received by Mr. Stone in case Number 69-- M--730, entitled Walter Fitschen vs. Bellm Freight Lines, Inc. This latter summons had been issued in the case which is now before us on appeal.

Mr. Stone stated that he kept the summons of March 3, 1969, and took no action regarding it because he thought it was merely a duplicate of a summons that he had received a few days previously.

On motion of the plaintiff a default judgment was entered against the defendant on May 1, 1969, and damages were awarded in the sum of $9,500.00. The defendant on July 15, 1969, filed his petition to vacate the default judgment. The plaintiff filed a motion to strike the petition of defendant. After the filing of various additional motions by both the plaintiff and the defendnt the trial court on December 2, 1969, entered the order setting aside the default judgment from which this appeal is taken.

The issue presented is whether the trial court properly allowed defendant's petition to vacate a default judgment pursuant to the provisions of Section 72 of the Civil Practice Act, Chap. 110, Sec. 72, Ill.Rev.Stats.

Section 72 of the Civil Practice Act was enacted by the legislature for the purpose of eliminating various ills which existed under the common law practice. It is Section 72 that provides a simple method for persons aggrieved by judgments to bring post-judgment remedies to the attention of the trial court. Under the Civil Practice Act a motion to vacate a judgment has been substituted for the common law writ in error, coram nobis; however, the use of the statutory motion has not been restricted to the narrow confines of its common law antecedent. Fraud or excusable mistake is sufficient to support a motion to vacate a judgment in modern practice where the fraud or mistake has the effect of preventing a litigant from making his defense. Ellman et al. v. DeRuiter, 412 Ill. 285, 106 N.E.2d 350. Where an excusable mistake is shown as the reason for not having made a defense in the proceedings wherein a default judgment had been rendered, such mistake is a sufficient showing of the exercise of reasonable diligence and the court has the duty to exercise its discretion in granting a petition to vacate a judgment. Boyle v. Veterans Hauling Line, 29 Ill.App.2d 235, 172 N.E.2d 512.

In order to determine the issue as to whether the petition to vacate the default judgment was properly granted we must decide the basic question as to whether the defendant was guilty of an excusable or inexcusable mistake. We must look to the facts existing when the judgment was entered to determine whether those facts, if known to the trial court, would have prevented the trial court from rendering judgment against the defendant in the first instance.

Within a forty-eight hour span of time Donald E. Stone, Vice President of the defendant corporation, had served upon him two summons which resulted from the filing of two separate lawsuits arising from the same factual situation. The suits were filed the same day and bore consecutive filing numbers. The captions of the suits were identical with the exception that an additional pa...