Okumura v. Nisei Bowlium, Inc.

• Decision Date: 04 November 1976
• Docket Number: No. 62839,62839
• Citation: 43 Ill.App.3d 753,357 N.E.2d 187,2 Ill.Dec. 210
• Parties: , 2 Ill.Dec. 210 William T. OKUMURA d/b/a Edgewater Real Estate, Plaintiff-Appellant, v. NISEI BOWLIUM, INC., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 187

357 N.E.2d 187

43 Ill.App.3d 753, 2 Ill.Dec. 210

William T. OKUMURA d/b/a Edgewater Real Estate, Plaintiff-Appellant, v. NISEI BOWLIUM, INC., et al., Defendants-Appellees.

No. 62839.

Appellate Court of Illinois, First District, Third Division.

Nov. 4, 1976.

Arthur J. Frank, Chicago, for plaintiff-appellant; Frank Associated, Ltd., Chicago, of counsel.

Richard K. Hikawa, Chicago, for defendants-appellees.

MEJDA, Presiding Justice.

Plaintiff, William T. Okumura, d/b/a Edgewater Real Estate, appeals from an order of the Circuit Court of Cook County granting a petition brought by defendants Nisei Bowlium, Inc. (Nisei) and Joe K. Sagami, pursuant to section 72 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 72), to vacate a default judgment previously entered against defendants. Plaintiff contends on appeal that the trial court erred in vacating the judgment since defendants' petition was unsupported by affidavit, was presented without proper notice, and failed to allege either a meritorious defense or due diligence on the part of defendants.

The record on appeal is sparse. An order was entered on April 25, 1975, directing a defendant named in the original action, Chicago Title and Trust Company, as escrowee, to retain and pay out certain sums of money. The matter was also thereby continued to June 4, 1975 on plaintiff's motion. The order was labeled 'agreed order' and was signed by an attorney for Chicago Title and Trust Company and by R. K. Hikawa as attorney for defendants Nisei and Sagami.

On June 4, 1975 plaintiff filed a notice of motion which had previously been mailed to each named defendant. The notice stated that on June 4 plaintiff would move for leave to file an amended complaint and service of process, to join an additional party and for judgment by default against defendants Nisei and Sagami for failure to appear or plead. An order was entered on June 4, 1975 granting plaintiff leave to join as defendant and serve process on Chicago Title and Trust Company as trustee, granting plaintiff leave to file an amended complaint, granting defendants Nisei and Sagami leave to appear and answer within 15 days, and continuing the hearing until June 26, 1975. The order was again labeled 'agreed order' and was signed by R. K. Hikawa as attorney for defendants Nisei and Sagami. On June 26, 1975 an order was entered finding defendants Nisei and Sagami in default for 'having failed to appear or plead or comply with the order of . . . June 4, 1975,' and taking judgment against them for $24,750.

A hearing was held on July 28, 1975 on plaintiff's motion for a turnover order, and an order was entered that day continuing the hearing to August 1, 1975 and ordering that no additional notice be required. On August 15, 1975, on motion of defendant Nisei, the following order was entered: 'It is ordered that defendant file appearance and answer on or before August 22, 1975 and defendant to have petition verified before filing in court. Also vacate judgment entered on June 26, 1975 and set for trial on Sept. 4, 1975 . . .. That this is a final order with respect to such judgments and there is no just cause to delay any appeal with respect thereto.'

On August 20, 1975 Richard K. Hikawa filed a written appearance on behalf of defendants Nisei and Sagami. On August 26, 1975 plaintiff filed a notice of appeal from the order of August 15, 1975, and on September 5, 1975 plaintiff filed a praecipe for record. On September 25, 1975 defendants filed a section 72 petition to vacate the June 25, 1975 judgment.

On appeal plaintiff alleges that on August 15, 1975, when he appeared before the trial court to examine Chicago Title and Trust Company on a citation to discover assets, an attorney for Nisei and Sagami who had still failed to file an appearance, answer or other pleading, presented the disputed section 72 petition to the court. Plaintiff also alleges that no copy of the petition nor any notice thereof had been conveyed to him prior to the date of presentation; further, that no supporting affidavit was attached to the petition which was unverified at that time.

We note that a written petition seeking relief under section 72 containing a jurat was filed with the clerk of the court on September 25, 1975, after plaintiff had filed his notice of appeal. However, defendants had already been granted relief on August 15, 1975 upon an unverified petition which the court at that time ordered to be verified before filing. We find that on August 15, 1975 the court erred in vacating the judgment since it did not have a proper pleading before it upon which to grant such relief.

Section 72 of the Civil Practice Act provides a statutory procedure by which a litigant may seek relief from a judgment in the trial court more than 30 days after its entry; that is, when that court may no longer review and change its judgment. Although the petition must be filed in the original proceeding, it is not a continuation thereof but is the commencement of a new cause of action. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294; Mutual Nat. Bank of Chicago v. Kedzierski (1968), 92 Ill.App.2d 456, 236 N.E.2d 336; Ill.Rev.Stat.1973, ch. 110, par. 72(2).) As such, it constitutes the moving party's pleading, and under long established rules such petition must be in writing. (Harris v. Chicago House Wrecking...