Natale v. Enterprise Pub. Co.
| Decision Date | 06 April 1967 |
| Docket Number | Gen. No. 51620 |
| Citation | 82 Ill.App.2d 105,227 N.E.2d 84 |
| Parties | Peter Paul NATALE, Plaintiff-Petitioner, v. ENTERPRISE PUBLISHING COMPANY, an Illinois corporation, and Elmer Johnson and Lyn Daunoras, Defendants-Respondents. |
| Court | United States Appellate Court of Illinois |
Blumenthal & Schwartz, Chicago, for petitioner.
Arvey, Hodes & Mantynband, Chicago, Louis M. Mantynband, Richard J. Troy, Chicago, of counsel, for respondents.
Plaintiff has petitioned this court for leave to appeal from an order vacating a judgment on verdict for $10,000 proved up and entered in the absence of the defendants and their attorneys. Defendants have moved to dismiss on the ground that there is no provision for such an appeal, the order having been entered within the 30 day period pursuant to Section 50(6) of the Civil Practice Act. Plaintiff argues that the order is within the provisions of Supreme Court Rule 30 (now 306) which relates to the granting of new trials.
The order of vacation was conditioned upon the defendants' paying $1000 to the plaintiff and $500 to the County to reimburse them for expenses incurred. Defendants complied with the conditions imposed and the order of vacation became effective. The court at the time it entered the order stated that it was doing so pursuant to the provisions of Section 50(6) of the Civil Practice Act (Ill.Rev.Stat., ch. 110, § 50(6) (1965)), which provides that the court may on motion filed within 30 days, in its discretion, set aside any final order, judgment or decree upon terms and conditions that shall be reasonable. Orders vacating judgments are interlocutory and not final. Williams v. Morton, Illinois Appellate, 225 N.E.2d 671 (decided March 10, 1967). Notwithstanding this, the plaintiff contends, as we have said, that the order of vacation was in effect the granting of a new trial and hence within the provisions of Supreme Court Rule 30 (now 306) which provides that this court may upon petition allow the parties the right to appeal from an order granting a new trial. Plaintiff bases this contention on the fact that while no one was present on behalf of defendants, answers had been filed on their behalf, a jury was called, evidence heard, and instructions submitted and carefully examined by the judge, and that this was in substance a contested (sic) case and that defendants' failure to appear for trial cannot be considered a default. The resolution of this issue has special importance at this time because the enormous backlog of jury cases in this county has placed a great burden on both the bar and bench and has created many serious problems, not the least of which is what to do about defaults or the failure of parties to appear at the time of trial. The background of the case before us illuminates these problems.
Between the time of the filing of suit and entry of the judgment in question, four and a half years had elapsed. During that time the suit was on one occasion dismissed for failure of the plaintiff to appear. It was reinstated on his motion. The defendants' attorneys on motion duly made withdrew from the case and when it came up for hearing, no one appeared on behalf of the defendants nor were they themselves present. While the trial court was careful in its presentation of the case to the jury, it cannot be considered to have been a contested trial. When defendants finally engaged a new lawyer and their motion to vacate was made, the court decided that justice would be better served by vacating the judgment upon compliance with the requirements before stated.
Plaintiff cites Miller v. Paoli, 39 Ill.App.2d 367, 188 N.E.2d 730, in support of his position. T...
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...our decision; we retain the appeal as one from an order granting a retrial. This case must be distinguished from Natale v. Enterprise Publishing Co., Ill.App., 227 N.E.2d 84 (filed by this court April 6, 1967). In Natale a judgment was entered after a jury found the defendants guilty. Altho......
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