Gruss v. Beverley, 1-89-0282

Decision Date13 July 1990
Docket NumberNo. 1-89-0282,1-89-0282
Citation201 Ill.App.3d 502,147 Ill.Dec. 135,559 N.E.2d 135
Parties, 147 Ill.Dec. 135 Henry Phillip GRUSS, Plaintiff-Appellant, v. Ellen BEVERLEY and Michael McNamara, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

William J. Jovan, Chicago, for plaintiff-appellant.

Mathewson, Hamblet & Casey, Chicago, for defendants-appellees (J. Joseph Little and Laura H. Morrill, of counsel.)

Presiding Justice LaPORTA delivered the opinion of the court:

This is an appeal of the section 2-1401 order of the trial court (Ill.Rev.Stat.1987, ch. 110, par. 2-1401) vacating the default judgment previously entered in favor of the plaintiff and against the defendants.

The issue raised by the plaintiff is whether the trial court abused its discretion in granting defendant's section 2-1401 petition to vacate judgment.

Plaintiff filed suit on March 23, 1988, as lessor against defendants as lessees, for damages for breach of a written lease. The verified complaint alleged that the defendants had failed to pay the last five months rent of the lease term. The defendants appeared by separate counsel and on April 25 filed a timely motion to dismiss the complaint. Plaintiff was given leave to respond to the motion. Response was filed on May 12. On July 1, plaintiff moved the court to set the cause for trial on a date certain. The court set the matter for pretrial conference on August 31.

Pursuant to notice, on August 31 plaintiff moved for leave to file an amendment to the complaint to clarify the plaintiff's standing as the appropriate plaintiff to continue with suit to address matters raised in defendants' motion to dismiss. On August 31 counsel for opposing parties appeared for the scheduled pretrial conference. The trial court denied defendant's motion to dismiss, permitted plaintiff to file an amended complaint instanter, ordered an answer to be filed by September 28, and continued the pretrial to October 26.

Counsel for the defendants failed to appear at the continued pretrial conference on October 26. No answer to the complaint had been filed as ordered by the court. On October 26 the court entered an order of default on both defendants and set prove up for November 18.

On November 18 neither defendants nor their respective counsel appeared at the prove up. The court entered judgment in favor of the plaintiff and against the defendants based on the verified complaint and on plaintiff's sworn testimony at the prove up hearing.

The defendants on November 23 filed a motion to vacate the October 26 order of default with the clerk's office and noticed the motion for hearing on December 5, 1988, ten days later. Plaintiff filed a response to the motion to vacate and attached to its pleading a copy of the November 18 judgment.

On December 5 the trial court granted the defendants leave to file a reply to plaintiff's response by December 16 and set the motion to vacate default for hearing on December 28. Defendants did not file a reply to plaintiff's response.

On December 27 the defendants filed an amended motion to vacate the November 18 default judgment. The amended motion was heard by the court the next day, on December 28. Counsel for plaintiff argued that the December 27 motion to vacate the November 18 judgment was brought more than 30 days after judgment and therefore was not timely filed and that it should be denied. The trial court stated he would treat the pending motion to vacate as a section 2-1401 petition. The court vacated the judgment conditioned upon the filing by defendants of an answer to the complaint within seven days and their payment of $175 to plaintiff for witness and attorney fees. The plaintiff appealed.

Initially we note that section 2-1301 of the Illinois Code of Civil Procedure provides that:

"[j]udgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought * * *. The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable."

(Ill.Rev.Stat.1987, ch. 110, par. 2-1301(d), (e).)

After the suit was filed and service of summons accomplished appearances were timely filed by separate attorneys for the defendants. Defendants then filed a motion to strike and dismiss the complaint and plaintiff responded to the motion.

The record discloses that before the court had ruled on defendants' motion to dismiss and before any answer was filed or due, the plaintiff moved to set this cause for trial on a date certain. Instead of ruling on the motion to dismiss or setting a trial date, the court set the cause for pretrial conference on August 31. The record discloses that the defendants participated in the initial pretrial conference. On August 31 defendants' motion to dismiss was denied, they were ordered to answer the complaint within 28 days and the pretrial conference was continued to October 26. The record discloses that August 31 was the last date prior to the December 5 post-judgment motion that the defendants appeared or were represented by counsel at scheduled court dates.

No answer was filed. The defendants did not appear personally or by counsel at the continued pretrial date on October 26. The court on October 26 entered an order of default on the defendants for failure to file an answer to the complaint. The cause was set for prove up on November 18. The court clearly had authority under the provisions of section 2-1301(e) (Ill.Rev.Stat.1987, ch. 110, par. 2-1301(e)) to enter the order of default on October 26 for defendants' failure to file an answer on or before September 28 as ordered by the court. The entry of the default order is not challenged on appeal.

The Illinois Code of Civil Procedure also provides:

"[u]pon the entry of an order of default the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party's attorney of record. However, the failure of the attorney to give notice does not impair the force, validity or effect of the order * * *. The notice shall contain the title, number, court, date of entry, name of the judge, and state that the order was one of default. The notice may be given by postal card or in any manner provided by rules." Ill.Rev.Stat.1987, ch. 110, par. 2-1302(a), (b).

The defendants acknowledged that the clerk of the court sent them notice of the default order and that they received the notice. We note that because each defendant was represented by separate counsel the notice of default is presumed to have been sent to each of the defense attorneys. Although the defendants were represented by separate attorneys, defendants' motions each time were joint motions filed by one or the other of the counsel appearing for defendants indicating a shared responsibility for their representation.

From October 26 until November 18 the defendants clearly had ample time following notice of default from the court clerk to move to vacate the default. Having received notice of the default, counsel or the defendants themselves could have and should have checked the court file to determine whether any future court date had been set. Apparently no one checked the court file. They could have telephoned plaintiff's counsel to learn of any new court dates. It appears they did nothing, since no defendant or defense counsel was present at the November 18 prove up when the trial court entered judgment for plaintiff in the sum of $6,250 and costs.

In considering the issue raised by this appeal, whether the trial court abused its discretion when the defendants' amended motion to vacate default judgment was considered as a section 2-1401 motion and in granting the relief requested by vacating judgment, we look to the statutory requirements of section 2-1401. The pertinent provisions of the Illinois Code of Civil Procedure are:

"[r]elief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. * * * The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule. * * * The petition must be filed not later than 2 years after the entry of the order or judgment. Ill.Rev.Stat.1987, ch. 110, par. 2-1401(a), (b), (c).

The defendants' attempt to vacate the November 18 judgment, filed on December 27, was timely filed within the required statutory two years if the pleading had complied with the requirements of section 2-1401. However, the statute also requires that a section 2-1401 petition must be supported by affidavit or other appropriate showing as to matters not of record. We construe this language to mean an affidavit or other appropriate showing as to good cause grounds to vacate the judgment which do not appear in the record. Here the defendants filed an unverified amended motion to vacate the default judgment reciting that counsel's non-appearance in court was due to improper docketing by one of the defense attorneys. The motion recites the subsequent entry of judgment against defendants on November 18 and summarily states that defendants have a meritorious defense. No factual allegations as to what that defense might be are made, no answer had been filed nor was a supporting affidavit attached to the pleading to provide any further information as to the defendants' diligence in bringing the motion. No notice was given opposing counsel that a section 2-1401 petition would be presented. In fact, defense counsel did not present a section 2-1401 petition...

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