Harder v. Advance Transp. Co.
Decision Date | 25 August 1960 |
Docket Number | Gen. No. 11380 |
Parties | Nona Idylle HARDER and Donna Sobin, Plaintiffs-Appellees, v. ADVANCE TRANSPORTATION COMPANY, Inc., Defendant-Appellant, and Continental Chair Company, Codefendant. . Second District, Second Division |
Court | United States Appellate Court of Illinois |
Graham, Califf, Harper & Benson, Moline, McDonald & McCracken, Davenport, Iowa, for appellant.
Sam M. Arndt, Franklin S. Wallace, Rock Island, for appellees.
This was an action for personal injuries and property damages by the plaintiffs-appellees Nona Idylle Harder and Donna Sobin in the Circuit Court of Rock Island County against the defendant-appellant Advance Transportation Co., Inc. and the co-defendant Continental Chair Co. The co-defendant is not here concerned. The complaint alleges injuries and damages resulting from a collision of an auto in which the plaintiffs were riding and tractor trailer units of the defendants while the defendant-appellant's unit was operated by its employee Theodore Markley March 1, 1958 on a highway in Rock Island County. Service was had, as indicated by the return of the Sheriff of Cook County, on the defendant-appellant Advance Transportation Co. on March 20, 1959, by leaving a copy with Roger A. Young, agent of the Advance Transportation Company, Inc. at its place of business in Chicago. On April 23, 1959, no plea or appearance of the defendant-appellant being on file, a default was entered, damages assessed, and judgments rendered against it in favor of Nona Harder for $1,500, and of Donna Sobin for $3,500. On July 28, 1959, more than 90 days after the default judgments were rendered, the defendant-appellant Advance Transportation Company, Inc., filed a motion to vacate the judgments, supported by certain affidavits. This appears to be a proceeding brought under Sec. 72 of the Civil Practice Act, ch. 110, Ill.Rev.Stats., 1959, par. 72, and we shall consider the motion as a petition under that section. The plaintiffs filed a motion to strike or deny the defendant-appellant's motion to vacate. The Court allowed the motion to strike or deny and denied the motion to vacate, and this appeal by the defendant-appellant Advance Transportation Co. resulted.
Section 72 of the Civil Practice Act, ch. 110, Ill.Rev.Stats.1959, par. 72, provides, in part, that 'Relief from final orders, judgments and decrees, after 30 days from the entry thereof, may be had upon petition as provided in this section. * * *'
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. Nitsche et al. v. City of Chicago, 1917, 280 Ill. 268, 117 N.E. 500; Barrett et al. v. Queen City Cycle Co., 1899, 179 Ill. 68, 53 N.E. 550. 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.
The motion to vacate and the affidavits thereto attached in behalf of the defendant-appellant purported to show a meritorious defense to the effect it was not a motor vehicle of that company which was involved in the accident with the plaintiffs,--that it had no interest in the unit involved, that Markley was not employed by it, that it operated no vehicle in Rock Island County, and the unit involved was owned and operated by another named company,--and attempted to show lack of negligence on the part of the defendant-appellant in not presenting its alleged defense in apt time. The plaintiffs' motion to strike or deny the defendant-appellant's motion to vacate alleged that more than 30 days having elapsed since the judgment the Court had no jurisdiction to vacate it, the defendant's motion and affidavits were insufficient under Section 72 of the Civil Practice Act, and the defendant was culpably negligent, and that the defendant-appellant's culpable negligence is further shown by the affidavit of the plaintiffs' attorney attached to the motion which affidavit recites how he ascertained the name of defendant-appellant, that he wrote the defendant-appellant a letter concerning the matter prior to suit, and he had received no reply. It may be assumed, for the present purpose, that the appellant's motion and affidavits show an alleged meritorious defense, if correct and if proved.
To show proper diligence or lack of negligence on its part the affidavit of Roger A. Young is principally relied upon. This affidavit is as follows:
The defendant-appellant's other supporting affidavits are by Theodore Markley, August Lindner, Mary Piloet, and John Carey. The affidavit of Mr. Markley is to the effect he was the operator of a tractor trailer unit involved in the accident in question, he was employed by another company, that company owned and operated the unit, and he was not employed by the defendant-appellant. The affidavit of Mr. Lindner is to the effect he is an officer of the defendant-appellant, it has no authority to operate in and does not operate in Rock...
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