Mares v. Metzler

• Decision Date: 22 August 1980
• Docket Number: No. 79-1871,79-1871
• Parties: , 42 Ill.Dec. 832 Frank E. MARES, d/b/a Mares Service, Plaintiff-Appellant, v. Raymond METZLER, Catherine Metzler, Individually and d/b/a Carey Horse Vans, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 447

409 N.E.2d 447

87 Ill.App.3d 881, 42 Ill.Dec. 832

Frank E. MARES, d/b/a Mares Service, Plaintiff-Appellant, v. Raymond METZLER, Catherine Metzler, Individually and d/b/a Carey Horse Vans, Defendants-Appellees.

No. 79-1871.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 22, 1980.

[42 Ill.Dec. 833] Kaplan, Gold & Gallagher, Ltd., Chicago, for plaintiff-appellant.

Teller, Levit & Silvertrust, P. C., Orin S. Rotman, Chicago, for defendants-appellees.

SULLIVAN, Presiding Justice:

Plaintiff in appealing an order vacating a default judgment entered against two of the three named defendants, contends that vacatur was improper because the trial court lacked the jurisdiction to do so and, alternatively, because the motion to vacate did not meet the requirements of a section 72 petition.

The facts herein are not in dispute. Plaintiff filed the instant action for monies owed against defendants Raymond Metzler, Catherine Metzler, and T. Atkinson, individually and d/b/a Carey Horse Vans. The Metzlers were served with summons, but Atkinson had never been served. Only Raymond Metzler filed an appearance, and no answers were filed by any defendant. Then, on plaintiff's motion, a default judgment in the amount of $15,955.44 was entered against Raymond and Catherine Metzler on June 8, 1979.

On September 5, 1979, the Metzlers moved to vacate the default judgment, alleging that the last court date known to them was May 31, 1979; that their attorney was in Dallas at that time and unable to appear; that plaintiff's attorney had agreed to continue the court date; and that their attorney had not been informed of the default. The motion was denied on September 14.

On October 9, 1979, the Metzlers filed a motion seeking vacatur of the default judgment pursuant to section 50(5) or, alternatively, section 72 of the Civil Practice Act, stating in substance that they had a good and bona fide defense to said complaint; namely, that they had never contracted with plaintiffs; that because the action was brought against three defendants, the default judgment against only two of them is neither final, appealable, nor enforceable under Supreme Court Rule 304(a) since it did not dispose of all the issues as to all parties and did not contain an express finding that there is no just reason for delaying enforcement or appeal thereof; that the Metzlers had retained an attorney who "(f)or reasons unknown" to them "failed to properly docket continuance dates and also failed to file a responsive pleading"; and that they first learned of the default judgment in August 1978. In their prayer for relief, they asked vacatur of the default judgment order under section 50(5) in the event it found the order to be not final, appealable and enforceable; or, alternatively, that the trial court vacate the order under section 72 if it viewed the order as final.

On October 11, 1979, the motion was granted and the default judgment vacated. The Metzlers then filed a verified answer to plaintiff's complaint, which included an affirmative defense that at no time did they transact any business with plaintiff and that if services were rendered they were done for Carey Horse Vans, Inc., a corporation. This appeal is from the October 11 vacatur order.

OPINION

The motion filed by the Metzlers was entitled "Motion * * * Pursuant to Section 50(5) and Section 72 of the Civil Practice Act Seeking to Vacate Judgment." From the substance of the petition, it appears vacatur was sought on alternative grounds: first, that the trial court had authority to vacate the judgment under section 50(5) because the order was not appealable under Supreme Court Rule 304(a) (Ill.Rev.Stat.1979, ch. 110A, par. 304(a)) since it was entered as to fewer than all parties and lacked the express finding required by that Rule; and second, that the allegations in their petition were sufficient to warrant vacatur under section 72 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 72). The record does not disclose the basis for the trial court's order vacating the judgment.

We shall first determine whether vacatur was proper under the first ground asserted by the Metzlers. In this regard, we note the motion referred to section 50(5) of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 50(5)), which provides as follows:

"(5) The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms or conditions that shall be reasonable."

In addition, the motion mentioned Supreme Court Rule 304(a), which states:

"(a) Judgments As To Fewer Than All Parties or Claims Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on the motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights and liabilities of all the parties." (Ill.Rev.Stat.1979, ch. 110A, par. 304(a).)

By way of explanation, we point out that section 50(5) provides that (1) a default may be set aside at any time before final order or judgment; and (2) on motion filed within 30 days after entry of a final order or judgment, the court may on motion filed within 30 days set aside such final order or judgment. However, under the authority of Supreme Court Rule 304(a), the court may vacate a default judgment which was entered as to less than all parties at any time (including after 30 days), provided there was no express finding that the order was appealable and that judgment has not yet been entered as to all parties. Hazel v. Hayes (1973), 14 Ill.App.3d 292, 302 N.E.2d 458; Haley v. Merit Chevrolet, Inc. (1966), 67 Ill.App.2d 19, 214 N.E.2d 347.

The judgment order entered in the instant case did not contain such express finding and if, as the Metzlers contend, the rights of "fewer than all parties" were...