De Jarnett v. Roseborough

• Decision Date: 10 April 1968
• Docket Number: Gen. No. 50664
• Citation: 94 Ill.App.2d 164,236 N.E.2d 276
• Parties: Ezra DE JARNETT, Plaintiff-Appellee, v. William ROSEBOROUGH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 276

236 N.E.2d 276

94 Ill.App.2d 164

Ezra DE JARNETT, Plaintiff-Appellee, v. William ROSEBOROUGH, Defendant-Appellant.

Gen. No. 50664.

Appellate Court of Illinois, First District, Fourth Division.

April 10, 1968.

Asher, Greenfield, Gubbins & Segall, Chicago, for appellant; Irving M. Greenfield, Irving D. Levin, Chicago, of counsel.

James E. Land, Lansing, for appellee.

ENGLISH, Justice.

Defendant appeals from vacatur of an order dismissing plaintiff's cause of action for want of prosecution.

This action arose as a result of an automobile collision. Plaintiff sued for damages to his vehicle in the sum of $734.67. Defendant filed his answer and the cause was set for trial on November 16, 1964. Subsequently, the court entered orders 'by agreement of the parties' continuing the case for trial until November 30, 1964, and to January 11, 1965. After another continuance by agreement to January 25, 1965, the court, on that date, entered an order dismissing the cause for want of prosecution.

On April 26, 1965, a verified petition on the oath of the attorney for plaintiff was filed, asserting:

That plaintiff was prepared to proceed to trial on January 11th and had in fact arranged for his client and the witness to come to Blue Island from Tamms, Illinois which is a considerable distance. That on Friday, January 8th, plaintiff's attorney received a telephone call from defendant's attorney advising that he had a criminal matter scheduled for January 11th and could not proceed to trial, and requested plaintiff's counsel to again continue the matter. Defendant's counsel further stated that he was certain he could compromise the matter pursuant to the demands submitted to him by plaintiff at that time, and that plaintiff's counsel relying upon the offer of compromise agreed to forego insistence upon proceeding to trial. The plaintiff's counsel was in fact unable to call his clients in Tamms, Illinois because they had already left for Blue Island on Saturday, January 9th, and the plaintiff did in fact appear in court at the time of trial, being January 11th, and that they telephoned Petitioner who advised them of settlement in that the case should be allowed to be dismissed for want of prosecution. That subsequent to the above action, the defendant has advised plaintiff's counsel that he cannot now settle the matter, whereupon plaintiff moves the cause be set down for a day certain for trial.

Defendant's lawyer filed a verified answer in opposition to the motion and in reply to the petition. On May 10, 1965, the court, 'being advised in the premises,' vacated the dismissal order and reset the case for trial. Defendant appeals from the order of May 10 reinstating the case.

Relief from final orders after thirty days from their entry may be had upon petition, as provided in Section 72 of the Illinois Civil Practice Act. Ill.Rev.Stat. (1963), ch. 110, § 72(1). Therefore, though not denominated as such, plaintiff's petition will be treated as seeking relief under this section. While such a petition is filed in the same proceeding, it is in essence a new action subject to the usual rules governing civil cases.

A section 72 petition is subject to a motion to dismiss if it fails to show on its face that petitioner is entitled to the relief sought. Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294; First National Bank & Trust Co. v. Desaro, 43 Ill.App.2d 153, 155, 193 N.E.2d 113. Generally, where the opposing party elects not to file a motion to dismiss and, instead, answers on the merits, he will be deemed, on review, to have waived his opportunity to attack the sufficiency of the petition. Selvaggio v. Kickert School Bus Line, Inc., 46 Ill.App.2d 398, 405--406, 197 N.E.2d 128; Maierhofer v. Gerhardt, 29 Ill.App.2d 45, 48, 172 N.E.2d 201. However, as in any civil action, if there is a total failure to state a cause of action or, as in this case, a basis for statutory relief, then there exists no pleading upon which to sustain a judgment or order, and the primary pleading may be challenged at any time. Grizzard v. Matthew Chevrolet, 39 Ill.App.2d 9, 16--17, 188 N.E.2d 59.

Section 72 does not afford a procedure whereby a party is relieved of the consequences of his own mistake or negligence. Piper v. Reder, 70 Ill.App.2d 141, 144, 217 N.E.2d 487; Gundersen v. Rainbow Cleaners & Laundry, 77 Ill.App.2d 268, 272, 222 N.E.2d 41. Rather, Section 72 authorizes the court to exercise its equity powers to grant relief where necessary to prevent injustice. Elfman v. Evanston Bus Co., 27 Ill.2d 609, 613, 190 N.E.2d 348. If, under the circumstances of the case, 'substantial justice' dictates that the judgment be set aside, then it would appear under Elfman that the court has the power to take such action. However, if the petition is to comply with the requirements of Section 72, it must, at the very least, demonstrate to the court why it would be...