Nikola v. Campus Towers Apartment Bldg. Corp.

• Decision Date: 12 March 1940
• Docket Number: Gen. No. 40595.
• Citation: 303 Ill.App. 516,25 N.E.2d 582
• Parties: NIKOLA v. CAMPUS TOWERS APARTMENT BLDG. CORPORATION.
• Court: United States Appellate Court of Illinois

303 Ill.App. 516

25 N.E.2d 582

NIKOLA

v.CAMPUS TOWERS APARTMENT BLDG. CORPORATION.

Gen. No. 40595.

Appellate Court of Illinois, First District, Third Division.

Feb. 14, 1940.

Rehearing Denied March 12, 1940.

Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.

Personal injury action by Robert J. Nikola, a minor, by Joseph Nikola, his next of kin, against the Campus Towers Apartment Building Corporation. From an order vacating judgment for plaintiff and giving defendant leave to answer, the plaintiff appeals.

Affirmed.

JOHN J. SULLIVAN, P. J., dissenting.

J. S. Pressman, of Chicago, for appellant.

Charles Danto, Kirkland, Fleming, Green, Martin & Ellis, Walter E. Tinsley, and John M. O'Connor, Jr., all of Chicago, for appellee.

BURKE, Justice.

On February 10, 1938, Robert J. Nikola, a boy 13 years of age, by his next of kin, filed a complaint against The Campus Towers Apartment Building Corporation, in the Circuit Court of Cook County, and therein averred that defendant owned and operated a residential apartment building located at 1033 West Loyola Avenue, Chicago, and in connection therewith, through its servants, operated a passenger elevator therein for the purpose of carrying persons from one floor to another; that on April 6, 1937, while the plaintiff was a passenger in the elevator, the defendant, by its servant, operated the elevator in such a negligent manner that the left foot of plaintiff was severely injured. Plaintiff asked damages in the sum of $5,000. He demanded a trial by jury. Summons was issued on February 10, 1938. The sheriff certified that he served the summons by leaving a copy thereof with Jean Cook, an agent of defendant, on February 24, 1938. On May 6, 1938, the court entered an order reciting that summons had been duly served on defendant, that defendant had failed to answer or otherwise make appearance, that defendant be defaulted and ordered that the complaint be taken as confessed as against the defendant. On June 20, 1938, plaintiff waived his right to a trial by jury. Thereupon the court assessed plaintiff's damages at the sum of $3,000 and entered judgment against defendant. On July 25, 1938, execution was issued on the judgment and on August 18, 1938, a demand under the execution was made on defendant. On September 15, 1938, defendant's attorneys served notice on counsel for plaintiff that on the day following they would appear before the motion judge in the Circuit Court and move that the judgment and default orders be vacated and that leave be granted to file defendant's appearance and answer to the complaint. On September 16, 1938, defendant presented its verified petition, which set up that the first knowledge it had of the action was received on August 18, 1938, when the demand was made on the execution; that prior to August 18, 1938, plaintiff had no knowledge of the action or the judgment; that on acquiring such knowledge it conferredwith its attorneys, who investigated and discovered the facts; that no summons was served on defendant through Jean Cook by the deputy sheriff named in the return, or by any deputy sheriff on February 24, 1938, or on any other date whatsoever, nor did Jean Cook at any time receive a copy of any summons in the instant case; that defendant believed that plaintiff had withheld making demand on the execution until it was too late for defendant to move to vacate the judgment within 30 days from the entry thereof. The petition then sets out what it describes as a good defense to the merits of the action. The averments are sufficient in our opinion to join issue on the matters alleged in the complaint. Attached to the verified petition were affidavits by Jean Cook and eleven other persons. The affidavits purport to show that the corporation was not served through Jean Cook and that no other employee was served. On October 7, 1938, the court ordered plaintiff to file an answer to the petition within five days. On October 10, 1938, defendant filed a motion to dismiss the petition and therein set out that the petition was substantially insufficient in the following particulars:

“1. It appears that the petition to vacate judgment entered June 20, 1938 was filed on September 17, 1938, thus bringing the filing of the said petition beyond the term of court in which the judgment was entered.

“2. It appears on the face of the petition that the sheriff served a summons on the defendant by leaving a copy thereof with one Jean Cook, admittedly an agent of said corporation on the 24th day of February, 1938.

“3. It appears on the face of the petition and on the face of the record that the return of the sheriff of said summons was in harmony with the findings of the court in its judgment that the defendant was duly served.

“4. It appears on the face of the petition that the defendant is attempting to contradict the return of the sheriff on the summons after the term of court had ended in which judgment was rendered.

“5. It does not appear in the petition, nor does defendant contend that the alleged false return had been procured by the fraud of the plaintiff.

“6. This court is without jurisdiction to vacate and set aside a judgment after the term of court has ended in which the judgment was rendered, upon the grounds of the false return by the sheriff when that return is in harmony with the findings of the court in its judgment that the defendant was duly served.”

On October 20, 1938, the court, after argument and due deliberation, sustained the motion to vacate the judgment and gave defendant leave to file its appearance and answer within 10 days. Although the court did not expressly rule on plaintiff's motion to dismiss the petition, the order allowing defendant's motion to vacate the judgment was, in effect, a ruling on plaintiff's motion. Plaintiff prosecutes this appeal from the order which vacated the judgment and gave defendant leave to answer.

The first point urged by plaintiff is that a judgment cannot be vacated in the same proceeding after 30 days from the entry thereof, except under the provisions of Section 72 of the Civil Practice Act, Ill.Rev.Stat.1939, c. 110, § 196. Section 50 of the Civil Practice Act, Sec. 174, chap. 110, Ill.Rev.Stat.1939, provides that the court may, within 30 days after the entry thereof, set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable. In the instant case, the motion was presented 80 days after the entry of judgment. Plaintiff insists that as defendant did not present his motion within 30 days following the judgment, he must seek relief, if at all, under Section 72 of the Civil Practice Act, Sec. 196, chap. 110, Ill.Rev.Stat.1939, which provides that “The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. When the person entitled to make such motion shall be an infant, non compos mentis or under duress, at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years.” Plaintiff then proceeds to argue that a motion to vacate a judgment on the ground that the sheriff made a false return, cannot be entertained under Section 72 of the Civil Practice Act. He cites the case of Chapman v. North American Life Insurance Co., 292 Ill. 179, 126 N.E. 732. In that case the defendant filed a motion under Section 89 of the Practice Act of 1907, Smith-Hurd Stats. c. 110, Appendix, § 89. By his motion, defendant in that case challenged the service of the summons. The return by the sheriff showed that service was had by delivering a copy of the summons to the vice president of the corporation, the president not being found in the county. At that time the law required that the sheriff first serve the president, if he could be found in the county. The defendant contended that the president could be found in the county. It will be seen, therefore, that the factual situation involved an attack on the validity of the service, whereas, in the case at bar the contention is that there was no service whatsoever. In the Chapman case the Supreme Court said, 292 Ill. at page 187, 126 N.E. at page 735:

“The doctrine prevails in this state that the return of the sheriff on the summons, where that return is in harmony with the findings of the court in its judgment that the defendant was duly served, cannot be contradicted after the term of court has ended in which judgment was rendered, except in rare instances, as where the sheriff is sued for making a false return, which is one of his remedies where the defendant is damaged by a false return. Hunter v. Stoneburner, 92 Ill. 75;Lancaster v. Snow, 184 Ill. 534, 56 N.E. 813. In this state, before judgment is taken the sheriff's return can be contradicted when a false return is taken advantage of by a plea in abatement, or, more properly speaking, by a plea to the jurisdiction of the court of the person of the defendant. Sibert v. Thorp, 77 Ill. 43. All the cases will be readily distinguished that have been cited to us on the question of a sheriff's return, by noting that after judgment has been rendered, and after the term has ended in which judgment was rendered, the sheriff's return is conclusive as between the parties, and cannot be taken advantage of by error coram nobis unless such false return has been procured by the fraud of the plaintiff. No such charge is made in this case. So far as the record shows, the plaintiff in this suit knew as little about the whereabouts of the president of defendant as did the court when this judgment was rendered. We are not without authority in our own state upon this...