Kollath v. Chicago Title & Trust Co.
| Decision Date | 17 November 1975 |
| Docket Number | No. 47296,47296 |
| Citation | 62 Ill.2d 8,338 N.E.2d 188 |
| Parties | Richard B. KOLLATH, Appellee, v. CHICAGO TITLE AND TRUST CO., Trustee, et al., Appellants. |
| Court | Illinois Supreme Court |
Albert E. Arnstein, Chicago, for appellants.
Raymond I. Suekoff and Martin L. Silverman, Chicago (Suekoff & Silverman, Chicago, of counsel), for appellee.
The plaintiff, Richard Kollath, brought an action in the circuit court of Cook County on November 27, 1968, to foreclose a mechanic's lien for architectural services he had rendered. The case was placed on the calendar of the late Judge Herbert Paschen and was called up on October 4, 1971. When the plaintiff failed to appear, the case was dismissed for want of prosecution.
Section 50(5) of our Civil Practice Act provides:
'The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.' (Ill.Rev.Stat.1969, ch. 110, par. 50(5).)
On November 3, 1971, 30 days after the dismissal, the plaintiff's attorney filed a notice of motion in the office of the clerk of the circuit court of Cook County and paid the required ten-dollar filing fee. No motion was filed with the notice. The notice stated that the plaintiff's attorney would appear on the following day, November 4, 1971, before Judge Paschen and that he would move to vacate the dismissal and reinstate the cause for trial. The notice of motion also stated that a copy of the notice of motion had been served on the defendants' attorney by mailing it on November 2, 1971, to his office at 111 West Washington Street, Chicago. It is undisputed that in November of 1971 the attorney's office was located at 77 West Washington Street, Chicago, and the plaintiff has admitted that the notice had been erroneously addressed.
The plaintiff's attorney appeared before Judge Paschen on November 4, 1971, and made an oral motion to vacate the order of dismissal. The motion was allowed and the case was reinstated for trial. Ten months later, in August of 1972, the plaintiff retained a different attorney to represent him in the case. The new attorney prepared to move to substitute for the plaintiff's attorney of record and sent a notice of motion to the defendants' attorney at his correct address on August 24, 1972. Upon ascertaining what had occurred in the case the defendants' attorney filed a petition to set aside the order of reinstatement of November 4, 1971, and requested the court to declare void all proceedings held thereafter. He filed an affidavit in which he stated that he never received any notice of motion in November 1971; that he was never notified of the hearing held on November 4, 1971, or of the order entered on that date; and that he first learned of them on August 25, 1972.
Upon the death of Judge Paschen the case had been assigned to another judge and on December 20, 1972, defendants' petition was denied. The defendants, however, then moved the court to vacate its order of December 20, and on January 5, 1973, the court vacated the order of December 20 and declared void the order of November 4, 1971. The court also reinstated the order of October 4, 1971, which had dismissed the case for want of prosecution. The appellate court, on the plaintiff's appeal, reversed the circuit court, holding that the notice of motion filed on November 3, 1971, satisfied the requirement that a motion be filed within 30 days and that the failure to provide notice of the motion to the defendants did not make the November 4 order a nullity. (24 Ill.App.3d 353, 321 N.E.2d 344.) We granted the defendants' petition for leave to appeal.
The defendants' contention to us is that the...
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...or rule that requires the filing of a motion." Id. at 868, 247 Ill.Dec. 110, 731 N.E.2d 883 (citing Kollath v. Chicago Title & Trust Co. , 62 Ill. 2d 8, 10, 338 N.E.2d 188 (1975) ).¶ 25 In Kollath , the sole authority we cited in the quoted discussion, the supreme court held that a notice o......
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...A notice of a motion, however, is not itself a motion, for it is not an application to a court. See Kollath v. Chicago Title & Trust Co. (1975), 62 Ill.2d 8, 10, 338 N.E.2d 188. A post-judgment motion "shall be filed with the clerk" of the court with a certificate of counsel or other proof ......
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