Nagel v. Wagner
| Decision Date | 18 February 1964 |
| Docket Number | No. 64-F-16,64-F-16 |
| Citation | 196 N.E.2d 728,46 Ill.App.2d 2 |
| Parties | L. E. NAGEL, Plaintiff-Appellant, v. Audrey D. WAGNER and Patricia J. Wagner, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Russell H. Classen, Belleville, for plaintiff-appellant.
Conn & Clendenin, Sparta, for defendants-appellees.
The plaintiff, L. E. Nagel, is appealing from an Order of the Circuit Court of St. Clair County, Illinois, vacating a default judgment entered against the defendants, Audrey D. Wagner and Patricia J. Wagner.
The plaintiff filed a complaint against the defendants to recover money allegedly due on a written farm lease. Defendants filed an answer admitting that they had possession of the farm described in the lease but denied that any rents were unpaid, and filed a counterclaim alleging that various sums were due from the plaintiff to the defendants and prayed that said sums be set off against any claim for rentals due on account of the farm lease executed between the parties. Plaintiff filed a reply to the counterclaim.
The case was first called to be set for hearing in the last week of October of 1962. At that time, the attorneys for the plaintiff and the defendants mutually consented to a continuance of the case generally until January 1963, without any specific date being set by the court for the cause to be heard. The cause was later set for hearing on January 2, 1963. Notice in writing of this setting was received by the plaintiff's attorney from the Clerk of the Circuit Court. Neither the attorneys for the defendants, nor the defendants themselves, received such notice or had any knowledge of the setting of this cause for trial on January 2, 1963.
On January 2, 1963, the plaintiff and his attorney appeared in the Circuit Court of St. Clair County and obtained a default judgment against the defendants in the amount of $5,637.08, including attorney's fees in the amount of $1,358.33.
On April 10, 1963, defendants filed a verified petition to vacate the judgment, with four letters attached thereto. In opposition to said petition to vacate the judgment, plaintiff filed a verified motion to dismiss the petition to vacate the judgment, with a letter from defendants' counsel attached thereto.
The trial court overruled the motion to dismiss the petition to vacate the judgment and allowed the petition to vacate and entered an order vacating the judgment of January 2, 1963, from which order plaintiff appeals.
The plaintiff contends that the trial court abused its discretion in entering the order vacating the judgment for the reason that the defendants' petition failed to show (1) that the defendants acted with diligence, and (2) a meritorious defense to plaintiff's complaint.
Motions to vacate default judgments, made within term time, have developed a number of basic rules. The motion or petition should show a meritorious defense and a reasonable excuse for not having made that defense in due time. The object is that justice be done between the parties and one party is not permitted to obtain and retain an unjust advantage. The motion is addressed to the sound discretion of the court and it is only when there is an abuse of discretion that a reviewing court will interfere. Dann v. Gumbiner, 29 Ill.App.2d 374, 173 N.E.2d 525.
Since Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350, the pattern of liberality in vacating default judgments in term time has been definitely expanded to include proceedings brought under Section 72, Chapter 110, Illinois Civil Practice Act, to set aside default judgments entered more than thirty days prior to the filing of the petition to vacate such judgments. As in petitions filed within term time, the after term time petition and supporting affidavit must adequately set forth sufficient facts to show a meritorious defense and due diligence. Dann v. Gumbiner, supra.
The defendants had filed an answer and a counterclaim to ...
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Smith v. Lehn & Fink Products Corp.
...discretion of the court and its decision will not be disturbed on review unless the court abused its discretion. (Nagel v. Wagner (1964), 46 Ill.App.2d 2, 196 N.E.2d 728.) In weighing a section 72 petition 'courts are not strictly bound by precedent in affording post judgment relief. Whethe......
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...Act does not impair the force, validity or effect of the order, but fairness requires that such notice of given. Nagel v. Wagner, 46 Ill.App.2d 2, 196 N.E.2d 728. The affidavits state that plaintiff's first knowledge of the orders was on May 25, 1965, and the filing of a petition on June 10......
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...only if the trial court abused its discretion. Taylor v. City of Chicago (1975), 28 Ill.App.3d 962, 329 N.E.2d 506; Nagel v. Wagner (1964), 46 Ill.App.2d 2, 196 N.E.2d 728. The record shows that plaintiff has diligently pursued its rights since the filing of the original complaint. Nine att......
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...is vested in the court which hears the petition, and we will reverse only upon a clear showing of abuse of discretion. (Nagel v. Wagner, 46 Ill.App.2d 2, 196 N.E.2d 728). In the case at bar, we believe that the discretion of the court was substantially limited by the established rule of law......