Mutual Nat. Bank of Chicago v. Kedzierski

Decision Date04 March 1968
Docket NumberGen. No. 52162
Citation92 Ill.App.2d 456,236 N.E.2d 336
PartiesMUTUAL NATIONAL BANK OF CHICAGO, Plaintiff and Counter- Defendant, Appellee, v. Joseph KEDZIERSKI, Defendant and Counter-Plaintiff, Appellant.
CourtUnited States Appellate Court of Illinois

Frank J. Wiedner, John P. McAuliffe, Chicago, for appellee; William J. Harte, Chicago, of counsel.

Isidore Goodman, Chicago, for appellant.

BURMAN, Presiding Justice.

This is an appeal by Joseph Kedzierski, defendant and counter-plaintiff, (hereinafter referred to as defendant) from an order of the trial court setting aside an ex parte judgment entered against Mutual National Bank of Chicago, plaintiff and counter-defendant, (hereinafter referred to as plaintiff).

It appears from the record that plaintiff brought an action sounding in contract against defendant, and that defendant filed a counterclaim. The cause was originally set for trial on July 27, 1966, and was continued until November 4, 1966. On the latter date no one appeared on behalf of the Bank. Its complaint was dismissed for want of prosecution and judgment was entered against plaintiff on defendant's counterclaim for the sum of $1,080.00. On December 27th, 1966, a writ of execution was issued.

On February 9, 1967, plaintiff filed a written motion by its attorney to set aside the judgment of November 4th. Proceeding under Section 72 of the Civil Practice Act (Ill.Rev.Stat.1965, ch. 110, § 72) plaintiff alleged that it first learned of the default judgment entered against it on January 31, 1967. Plaintiff, in its brief unverified petition, further alleged:

That the counter-defendant missed this case on the call * * * That the counter-defendant had been in communication with the counter-plaintiff by letter and by telephone concerning depositions with regard to matters of proof and was relying on this communication to continue before any trial of the issues was sought * * * That the counter-defendant has a meritorious defense and has acted with all due diligence in this matter * * * That to permit this default judgment to stand would be to work a grave injustice upon the counter-defendant.

Defendant filed written objections by his attorney in which it was alleged that on November 4, 1966, the cause appeared on the trial call and was listed in the Municipal Court Record of cases set for that day in Room 1304; that execution was served on plaintiff on or before December 30, 1966; that plaintiff's motion to set aside the judgment did not comply with Section 72 in that it is not supported by affidavit; that plaintiff was guilty of negligence in not appearing in court on the date set for trial and was not diligent in the presentation of its motion to vacate, and the allegations in the motion as to due diligence and a meritorious defense are conclusions, not supported by the facts.

On February 9, 1967, the court overruled defendant's objections, and entered an order sustaining plaintiff's motion to set aside the $1,080.00 judgment. The court file of the case being 'short' on February 9th, the order did not get on the record. Upon notice, a draft order was entered on March 2, 1967, placing the order of record nunc pro tunc as of February 9th.

A proceeding under Section 72 of the Civil Practice Act is the commencement of a new action although filed in the same proceeding, and is subject to the same rules of pleading as any other action. Wilson v. Wilson, 56 Ill.App.2d 187, 205 N.E.2d 636. The petition, like a complaint, must allege facts entitling the petitioner to the relief he seeks. Before relief is given under this section a petition must be filed in conformity with the requirements of the Act, which provides that 'The petition must be supported by affidavit or other appropriate showing as to matters not of record.' (Ill.Rev.Stat.1965, ch. 110, § 72(2).) Furthermore, a party seeking relief from a default judgment pursuant to Section 72 must show (1) a meritorious defense and (2) the exercise of due diligence. Till v. Kara, 22 Ill.App.2d 502, 161 N.E.2d 363; Detres v. Rojo, 80 Ill.App.2d 38, 225 N.E.2d 100.

In the case at bar, plaintiff neither filed a verified petition nor any affidavits to support its allegations. The motion is replete with mere conclusions and is not supported by allegations of fact. Ultimate facts showing due diligence and a meritorious defense must be shown. This was not done, nor was any attempt made to amend the motion in conformity with the requirements of Section 72.

The petitioner, through his attorney, alleges diligence by stating that it 'missed this case on the call,' and that it had been in communication with the defendant concerning depositions 'and was relying on this communication to continue before any trial of the issues was sought.' These allegations are insufficient to show that the plaintiff exercised due diligence. No facts are alleged showing an agreement between the parties that communications were to continue before the cause was brought to trial; nor are facts alleged showing that plaintiff's reliance on the continuation of communications was justified. The fact that the plaintiff missed the case on call does not demonstrate diligence. Indeed, it demonstrates lack of diligence. Williams v. Pearson, 23 Ill.2d 357, 177 N.E.2d 856. The motion to vacate was filed more than three months after the trial date and more than thirty days after execution was served. This can hardly be said to represent the exercise of diligence, especially in the absence of the allegations of substantial facts that would adequately excuse the inaction shown.

Plaintiff's petition fails to show...

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23 cases
  • Resto v. Walker
    • United States
    • United States Appellate Court of Illinois
    • November 28, 1978
    ...be determined. (See Aetna Casualty & Surety Co. v. Sanders (1973), 15 Ill.App.3d 573, 305 N.E.2d 25; Mutual National Bank of Chicago v. Kedzierski (1968), 92 Ill.App.2d 456, 236 N.E.2d 336; Grizzard v. Matthew Chevrolet (1963), 39 Ill.App.2d 9, 188 N.E.2d 59; Sarro v. Illinois Mutual Fire I......
  • Canton v. Chorbajian, s. 79-419
    • United States
    • United States Appellate Court of Illinois
    • September 24, 1980
    ...to grant relief, however, only when the facts and circumstances of the particular case call for it (Mutual National Bank of Chicago v. Kedzierski (1968), 92 Ill.App.2d 456, 236 N.E.2d 336.) In Ellman, plaintiffs' counsel willfully concealed the entry of a default judgment until such time as......
  • Marriage of Travlos, In re
    • United States
    • United States Appellate Court of Illinois
    • September 5, 1991
    ...his own lack of diligence. (Ostendorf, 89 Ill.2d at 283, 60 Ill.Dec. at 460, 433 N.E.2d at 257; Mutual National Bank of Chicago v. Kedzierski (1968), 92 Ill.App.2d 456, 460, 236 N.E.2d 336, 338.) Specifically, to set aside a judgment based on newly discovered evidence, it is quite settled t......
  • Campbell v. Kaczmarek
    • United States
    • United States Appellate Court of Illinois
    • June 11, 1976
    ...in the original proceeding, is not a continuation thereof, but is the commencement of a new cause of action. (Mutual Nat. Bank v. Kedzierski, 92 Ill.App.2d 456, 236 N.E.2d 336.) As in any civil case, the petition must allege facts stating adequate grounds for relief. (Smith v. Pappas, 112 I......
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