Oskvarek v. Richter

• Decision Date: 14 November 1961
• Docket Number: Gen. No. 48381
• Citation: 178 N.E.2d 209,32 Ill.App.2d 438
• Parties: Thomas OSKVAREK, a Minor, by Rose Janovsky, his mother and next friend, Plaintiff-Appellee, v. George RICHTER, Defendant-Appellant, John Heffernan and Charles Hodapp, Defendants.
• Court: United States Appellate Court of Illinois

Page 209

178 N.E.2d 209

32 Ill.App.2d 438

Thomas OSKVAREK, a Minor, by Rose Janovsky, his mother and next friend, Plaintiff-Appellee, v. George RICHTER, Defendant-Appellant, John Heffernan and Charles Hodapp, Defendants.

Gen. No. 48381.

Appellate Court of Illinois, First District, Second Division.

Nov 14, 1961.

Rehearing Denied Dec. 12, 1961.

George F. Barrett, Chicago, for appellant Richter, Zachary D. Ford, Jr., Edward Wolfe, Chicago, of counsel.

Powers McGuire, Chicago, for appellee, Francis X. Riley, Chicago, of counsel.

BURKE, Justice.

On March 31, 1960, plaintiff filed a complaint in the Town Court of Cicero against George Richter, John Heffernan and Charles Hodapp alleging that on December 24, 1959, he was a fare-paying passenger in a motor vehicle operated by George Richter, and that he suffered personal injuries in a collision of three automobiles in Chicago. He averred that he was in the exercise of due care for his own safety and that the injuries were proximately caused by the negligence of the three defendants. On April 14, 1960, a summons was served on John Heffernan, on June 7, 1960, on George Richter and on June 23, 1960, on Charles Hodapp. None of the defendants was served or found in Cicero and none was a resident of Cicero. They were served at their residences in Chicago.

On August 5, 1960, on motion of plaintiff, a default judgment for $20,000 was entered against Heffernan. On August 12, 1960, a default was entered against Richter. On September 9, 1960, a verdict was returned assessing plaintiff's damages at $20,000 against Richter and Heffernan jointly and severally, and on the same day judgment was entered on the verdict. On September 21, 1960, on motion of plaintiff, the court vacated the judgment against Heffernan nunc pro tunc as of August 5, 1960. On November 23, 1960, Richter filed a motion to vacate the default order entered against him on August 12, 1960, the 'purported' judgment entered on September 9, 1960, and for 'dismissal' of the action as to him on the grounds that when plaintiff took judgment on August 5, 1960 against Heffernan the effect was to dismiss the action against Richter and Hodapp, and that the Town Court of Cicero lacked venue and jurisdiction as the defendants resided and were served in Chicago, and the collision out of which the action arose occurred in Chicago. On November 23, 1960, the court denied Richter's motion. He appeals.

Appellant asserts that when plaintiff took judgment against Heffernan alone on August 5, 1960 (all defendants having been served with process) the effect was to dismiss the action against Richter and Hodapp, citing Chmielewski v. Marich, 350 Ill.App. 379, 382, 113 N.E.2d 69 (affirmed 2 Ill.2d 568, 119 N.E.2d 247, 42 A.L.R.2d 1023); Martinez v. Seymour, 348 Ill.App. 112, 108 N.E.2d 30; Davis v. Taylor, 41 Ill. 405; Illinois Central R. Co. v. Foulks, 191 Ill. 57, 60 N.E. 890; McDonald v. Judson, 97 Ill.App. 414; Lynch v. City of Chicago, 152 Ill.App. 160; and Postal Telegraph Cable Co. v. Likes, 225 Ill. 249, 80 N.E. 136; and other cases. He states that the provisions of the Civil Practice Act have not changed the common law rules with respect to the entry of judgments in tort cases, citing Michels v. Bezley, 12 Ill.App.2d 456, 459, 140 N.E.2d 134. He maintains that on September 21, 1960, the court had no authority to vacate the judgment of August 5, 1960 against Heffernan, stating the well-known rule that an amendment of the record after the expiration of the term must be based on some note or memorandum from the records or quasi-records of the court, or the judge's minutes, or an entry in a book required by law to be kept, or in the papers on file in the case, and that it cannot be determined from the memory of witnesses or the recollection of the judge. McCord v. Briggs & Turivas, 338 Ill. 158, 164, 170 N.E. 320; Martinez v. Seymour, 348 Ill.App. 112, 108 N.E.2d 30; Wilson v. Fisher, 369 Ill. 538, 542, 17 N.E.2d 216; Watson v. Watson, 11 Ill.App.2d 196, 200, 136 N.E.2d 530. This defendant concludes that as the court 'lacked venue to hear the case, it should have either dismissed or transferred the cause to a court of proper venue.'

It will be noted that Richter was served with a summons on June 7, 1960, and that a default order was entered against him on August 12, 1960. A verdict was returned against him and judgment entered on August 12, 1960. He took no notice of the judgment until the filing of his motion on November 23, 1960. Section 8 of the Civil Practice Act, Ill.Rev.Stat.1961, c. 110, § 8 provides that no action shall abate or be dismissed because commenced in the wrong venue or court if there is a proper venue or court of competent jurisdiction to which the cause may be transferred, that all objections of improper venue are waived by defendant unless a motion to transfer to a proper venue is made by him on or before the date upon which he is required to appear or within any further time that may be granted him, with exceptions not relevant in this case. Richter did not follow the requirements of Section 8 by moving to transfer to a proper venue on or before the date upon which he was required to appear or within any extended period granted him. Consequently he waived the improper venue. Had he moved with diligence, it would have been the duty of the court to transfer the cause to the Circuit or Superior Court. See People ex rel. Norwegian-American Hospital, Inc., v. Sandusky, 21 Ill.2d 296, 171 N.E.2d 640.

Section 50(6) of the Civil Practice Act provides that the court may in its discretion, before final judgment, set aside any default and may on motion filed within 30 days after entry thereof set aside any final judgment upon any terms and conditions that...