Lusk v. Bluhm, Gen. No. 9857.

• Court: United States Appellate Court of Illinois
• Writing for the Court: WOLFE
• Citation: 321 Ill.App. 349,53 N.E.2d 135
• Parties: LUSK ET AL. v. BLUHM ET AL.
• Docket Number: Gen. No. 9857.
• Decision Date: 16 February 1944

321 Ill.App. 349
53 N.E.2d 135

LUSK ET AL.
v.
BLUHM ET AL.

Gen. No. 9857.

Appellate Court of Illinois, Second District.

Feb. 16, 1944.

Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Action by Grant Lusk and others against Edward H. Bluhm and others, wherein plaintiffs obtained default judgments against George Meyer and others. From an order setting aside the default and judgments, plaintiffs appeal.

Affirmed.

[53 N.E.2d 135]

Lidschin & Pucin, of Waukegan, for appellants.

Snyder & Clarke, of Waukegan, and Peden & Overholser, of Libertyville, for appellees.

WOLFE, Justice.

On June 1, 1942, Grant Lusk, Clara M. Lusk and Mildred Lusk recovered default judgments against George Meyer et al., in the Circuit Court of Lake County, Illinois. On July 13, 1942, George Meyer filed a motion to vacate the said judgments. On August 4, 1942, the plaintiffs filed a motion to dismiss the motion of George Meyer. A hearing was had on the plaintiffs' motion, which motion was overruled by the Court. Leave was granted George Meyer to file a petition to set aside the default judgments of June 1, 1942. On August 12, 1942,

[53 N.E.2d 136]

George Meyer filed his motion and prayed that the order of default be set aside. On August 15, 1942, the petition was granted and an order to vacate and set aside the default and judgment was entered. George Meyer was given 10 days to answer the plaintiffs' complaint. On the same date George Meyer filed his answer. From the order setting aside the default, and judgments, Grant Lusk et al. have perfected an appeal to this Court.

The suit was started on October 23, 1940, and a demand made by the plaintiffs for a trial by a jury. The defendants were summoned on October 31, 1940, and on November 26 George Meyer entered his appearance through his attorney, John V. Mooradian. On December 5, 1940, George Meyer made a motion to dismiss the complaint. The hearing on this motion was continued five times until April 18, 1941, at which time the motion to dismiss was overruled, and the Court entered a rule against the defendants to plead to the complaint within 30 days.

On April 28, 1941, notice was served on George Meyer et al. that the plaintiffs would appear on April 28, and move for an order of default against Edward Bluhm, George Meyer and Hazel Bluhm. On April 28, 1941, an order of default was entered against George Meyer et al. On September 30, 1941, the cause was set for hearing, but the hearing was continued until December 8, 1941. No action was taken at this time. On February 9, 1942, the case was set for trial for March 23, 1942. On March 19, the case was set for trial on April 29, 1942. On May 25, 1942, the case was again set for trial, but the hearing was again continued.

On June 1, 1942, leave was granted the plaintiffs to file an amendment to the complaint instanter, and that the case be dismissed as to the defendant, George Brainard. No notice was given to George Meyer of any of these proceedings. The death of Hazel Bluhm was suggested, and the cause continued as to her estate. The amendment was filed, and the suit dismissed as to George Brainard. The amendment struck from the second line, on page 2 of the complaint, the words, “Business advisor,” and struck from line 6, on page 2 of the complaint, “that at the times in question hereinafter referred to, this plaintiff was in poor physical health,” and struck from line 9 page 3, the words, “That its stock was fully paid.” On the same day that the case was called for trial, the plaintiffs waived a jury, and the complaint was taken as confessed against George Meyer et al., and George Meyer adjudged in default by the Court. The case was submitted to the Court without a jury. He heard the evidence and found that the defendants were guilty of fraud and deceit, as alleged in the complaint; that malice is the gist of the action, and assessed the damage of the defendant, Grant Lusk, at $8,720, and rendered judgment for all the parties.

On July 13, 1942, George Meyer served notice upon the plaintiffs' attorney that he would file a motion to set aside the default and judgment and to recall the execution heretofore issued. The reasons for the motion were that the judgment was entered without notice to George Meyer, and that the default and judgment was entered without notice to the attorney of George Meyer, who had duly and regularly filed his appearance in said cause; that there were facts that existed on June 1, 1942, the date the judgment was entered, which, if the Court had known, he would not have entered the judgments; that the proceedings surrounding the entering of said judgment were irregular and improper and fatally defective; that facts existed which are not apparent on the face of the record, which, if known by the Court, would have precluded the entering of judgment on June 1, 1942; that the defendant has a good defense to this suit, and that he did not make any fraudulent representation nor participate in any fraudulent conduct; that he did not conspire to defraud; that he had nothing to do with the transactions alleged in the complaint, except that he did execute papers from time to time at the request of the said parties upon representations made; that the transactions were legitimate and being conducted in the usual course of...