Jacobson v. Ashkinaze

• Decision Date: 06 December 1929
• Docket Number: No. 19093.,19093.
• Parties: JACOBSON v. ASHKINAZE.
• Court: Illinois Supreme Court

337 Ill. 141

168 N.E. 647

JACOBSON

v.ASHKINAZE.

No. 19093.

Supreme Court of Illinois.

Oct. 19, 1929.

Rehearing Denied Dec. 6, 1929.

Error to Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; M. L. McKinley, Judge.

Action by Harold Jacobson, a minor, by A. W. Jacobson, his next friend, against Max Ashkinaze. Order denying a motion to vacate judgment for plaintiff was affirmed by the Appellate Court (249 Ill. App. 479), and defendant brings error.

Reversed and remanded with directions.

Aaron R. Eppstein, of Chicago, for plaintiff in error.

Jacobson, Merrick & Satter, of Chicago (Cameron Latter, of Chicago, of counsel), for defendant in error.

DE YOUNG, J.

Harold Jacobson, a minor, by A. W. Jacobson, his next friend, brought an action of trespass on the case against Max Ashkinaze in the superior court of Cook county. An ex parte jury trial resulted in a verdict in favor of the plaintiff for $25,000, and judgment followed. After the expiration of the term at which the judgment was rendered, Ashkinaze, the defendant, filed a written motion under section 89 of the Practice Act (Smith-Hurd Rev. St. 1927, c. 110, § 89) to vacate the judgment and for other relief. The plaintiff demurred to the motion, the demurrer was sustained, and the motion was denied. The defendant prosecuted an appeal to the Appellate Court for the First District, and that court affirmed the superior court's order (249 Ill. App. 479). Upon Ashkinaze's petition a writ of certiorari was granted, and the record is here for a further review.

The declaration in the action of trespass on the case consisted of one count and was filed on October 24, 1919. The plaintiff charged that the defendant on July 28, 1919, while operating his automobile along South Wabash avenue near Fifty-Fifth street, in the city of Chicago, carelessly and negligently struck the plaintiff, a boy of tender years exercisingdue care and caution for his own safety, and in him. The damages were laid at $25,000. A plea of the general issue was filed in behalf of the defendant by Pierre G. Beach, his attorney. On October 11, 1920, the cause was stricken from the docket of the superior court. Subsequently, on December 30, a document purporting to be a withdrawal of the appearance of Beach as the attorney for the defendant and the entry of the appearance of J. Kentner Elliott as the latter's attorney was filed in the office of the clerk of the court. On February 14, 1921, the attorneys for the plaintiff served a notice upon attorney Elliott that on the next day they would ask that the cause be placed at the foot of the trial call. The motion was made and the court vacated the order striking the cause from the docket, reinstated the cause, and set it for trial on February 16, 1921. The case was called on March 17 and a jury was impaneled. On the following day an additional count to the declaration, charging wanton and malicious conduct on the part of the defendant in driving the automobile, was filed. A special interrogatory based upon that count was submitted to the jury and answered in the affirmative. The jury found the defendant guilty and assessed the plaintiff's damages at $25,000. The trial was an ex parte one, for the defendant was not present either in person or by counsel. The court entered a motion for a new trial in behalf of the defendant. On March 19, 1921, the motion was denied and judgment was rendered on the verdict. No execution was ordered until May 10, 1923, when a body execution was issued.

On June 8, 1923, counsel now appearing for the plaintiff in error notified the attorneys for the plaintiff in the action and Attorneys Beach and Elliott that he would on the next day ask leave to enter his appearance as attorney for the defendant and present the latter's written motion, first, to vacate the judgment, the order denying the motion for a new trial, the verdict, and the order reinstating the cause; second, to strike from the files the special interrogatory with the jury's finding thereon, the additional court, and the purported substitution of attorneys; and, third, to quash the execution issued on the judgment.

After setting forth the proceedings taken in the cause, it is alleged in the motion that when the defendant was summoned in the original action he engaged Attorney Beach to defend him; that Beach accepted the employment and informed the defendant that his rights would be protected, that he would be notified when the case needed his further attention, and that it would not come to trial for several years, if ever; that the defendant first heard in May, 1923, that a judgment for damages in a large sum had been recovered against him; that he thereupon telephoned the office of Attorney Beach, but was told that the latter was absent; that upon further inquiry he was informed that the suit had been dismissed, and that shortly thereafter his present counsel made an investigation at his request, which disclosed the existence of the judgment. It is further alleged in the motion that the defendant had no notice prior to the middle of May, 1923, of the motion to reinstate the cause or of the subsequent proceedings which culminated in the rendition of the judgment and the issuance of the execution; that the defendant was not acquainted with Attorney Elliott nor was he informed of his attempt to succeed Attorney Beach, and the attempted substitution was made without the defendant's knowledge, consent, or acquiescence; that Beach had no authority from the defendant to substitute an attorney in his place and no order for that purpose was entered in the cause; that Elliott was not empowered to accept service of the motion to vacate the order striking the cause from the docket and to reinstate it; that the plaintiff and his attorneys knew that the notice served upon Elliott was void and that the defendant would have no notice of the order of February 15, 1921, vacating the order of October 11, 1920, and reinstating the cause; that they also knew that by the order of February 15, 1921, the cause would be improperly placed on the trial call and that any judgment rendered pursuant thereto would be void; that Attorney Beach had no notice of the proceedings taken; that in procuring the judgment without notice to the defendant or to Attorney Beach the plaintiff and his attorneys committed a fraud both upon the court and the defendant; that Beach's want of authority to substitute Elliott as the defendant's attorney and Elliott's lack of power to accept service of notice on behalf of the defendant did not appear in the record of the cause and were unknown to the court; and that if the court had been cognizant of these facts and of the fraud committed the proceedings would not have been taken and the judgment would not have been rendered.

Other allegations of the motion are that the additional count charging the defendant with wanton and malicious conduct in driving his automobile against the plaintiff stated a cause of action different from that set forth in the original declaration and was filed without leave of court; that the special interrogatory was predicated upon the additional count; and that the interrogatory and the answer thereto were not based upon any issue presented by the declaration and plea and should be stricken. The motion concludes with the statement that the defendant has a valid defense to the suit; that his defense is that while he was driving his automobile at a speed of seven or eight miles an hour in the righthand portion of the street, the plaintiff suddenly ran from the sidewalk into the street and collided with...