Resto v. Walker

• Decision Date: 28 November 1978
• Docket Number: No. 77-1738,77-1738
• Citation: 383 N.E.2d 1361,66 Ill.App.3d 733,23 Ill.Dec. 334
• Parties: , 23 Ill.Dec. 334 Anna RESTO, Individually, and as parent and natural guardian of Francisco Resto, Maritsa Resto and Frank Resto, minors, Plaintiffs-Appellants, v. Jack WALKER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1361

383 N.E.2d 1361

66 Ill.App.3d 733, 23 Ill.Dec. 334

Anna RESTO, Individually, and as parent and natural guardian of Francisco Resto, Maritsa Resto and Frank Resto, minors, Plaintiffs-Appellants, v. Jack WALKER, Defendant-Appellee.

No. 77-1738.

Appellate Court of Illinois, First District, Second Division.

Nov. 28, 1978.

Jerrold Blumoff of Brown, Dashow, Arons & Doran, Chicago, for plaintiffs-appellants.

Joel S. Summer, Chicago, for defendant-appellee; Lurie & Cahan, Ltd., Chicago, of counsel.

STAMOS, Presiding Justice:

Plaintiffs appeal from an order which granted defendant's petition, pursuant to section 72 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 72), to vacate an Ex parte judgment. Plaintiffs' chief contention is that the petition was insufficient as a matter of law in that it failed to allege facts tending to show the existence of a meritorious defense to the original cause of action.

On August 25, 1975, plaintiffs filed a complaint against defendant, their landlord, alleging that he turned off the gas to their apartment and removed their front door, thus causing intruders and strangers to enter the apartment and carry away plaintiffs' property. On March 18, 1976, a default judgment was entered against defendant. On April 2, 1976, on motion of defendant, the default judgment was vacated. This motion to vacate was not made part of the record on appeal, but the pertinent portion of the motion was set out in defendant's brief, and plaintiffs do not contend that defendant's representation of the contents of the motion is inaccurate nor have they objected to its consideration by this court on the ground that it has not been made part of the record. According to defendant's brief, the motion stated:

4. Defendant has a valid defense, insofar as Plaintiff has no meritorious claim and has, in fact, filed a false and frivolous pleading. Defendant will adduce competent evidence at trial that, contrary to the allegations in Count I of Plaintiffs' Complaint, the door was not removed by Defendant or anyone at his direction. As to the allegations in Count II, Plaintiffs' possessions were carried off under Plaintiffs' observation and direction. Defendant- Appellee's Brief, at 17.

However, defendant's answer only admitted that there existed a month-to-month tenancy between defendant and plaintiffs for the rental of the apartment involved; defendant's answer otherwise simply denied each and every allegation of plaintiff's complaint and contained no other factual matter. The cause was subsequently set for trial on December 20, 1976. ¹

The parties concede that sometime shortly before the trial date, their counsel agreed to continue the trial to a date in April, 1977. Defendant's counsel contends that on December 20, 1976, an attorney from his office appeared in court and requested of the clerk that the matter be set for trial sometime in April of 1977. According to defendant, the clerk gave counsel what he said was the next available date, July 11, 1977.

Later that day, counsel for the plaintiffs also appeared in the same courtroom to request continuance of the same matter, and was advised by the clerk that someone from the office of defendant's counsel had already requested a continuance and that the case had been continued to April 27, 1977. Plaintiffs' counsel then examined the minute book ² and perceived that it reflected the trial date as April 27, 1977, though we note that no reproduction of this entry has been made part of the record on this appeal.

On April 27, 1977, without any notice to, or knowledge on the part of, defendant or his counsel, plaintiffs appeared in court and, after testimony by plaintiff Anna Resto, had an Ex parte judgment entered against defendant in the sum of $2000.00. Defendant alleges that it was not until June 28, 1977, before the trial date he had been given, that he received any notice or knowledge of the judgment. The notice came in the form of a citation to discover assets which had been issued on June 20, 1977, 54 days after the entry of the Ex parte judgment.

On the day after he was served with the citation to discover assets, defendant filed a petition to vacate the judgment, pursuant to section 72 of the Civil Practice Act, Ill.Rev.Stat.1977, ch. 110, par. 72. In his petition, defendant alleged that an Ex parte judgment had been entered against him on April 27, 1977, when in fact the matter had been set for trial on July 11, 1977, as appeared from the copy of the "half-sheet" appended to the petition as Exhibit A. Defendant contended that he had a right to rely on the half-sheet, under Cook County Circuit Court Rule 0.3(b), and that if the matter had been set for trial on April 27, 1977, it was a misprision of the clerk not to note this on the half-sheet. Defendant's petition also alleged that defendant's attorney notified plaintiffs' counsel of the July 11, 1977, trial date.

Plaintiffs filed a motion to strike the petition to vacate, alleging: (1) that the petition was insufficient to warrant the relief sought; (2) that from the petition it affirmatively appeared that the relief prayed for therein should be denied; (3) that the defendant had not exercised diligence in that the minute book reflected the trial date as April 27, 1977; (4) that defendant had advised plaintiffs that defendant would seek a trial date in April, 1977; (5) that plaintiffs' counsel's examination of the minute book indicated the trial date as April 27, 1977; (6) that defendant had no right to rely on the half-sheet since the parties had agreed on an April date; and (7) that defendant's petition failed to allege that defendant had a valid defense to the action in the event judgment was vacated.

Pursuant to the motion to strike, plaintiffs attached the affidavit of plaintiffs' counsel, which stated: (1) that the parties had agreed to a continuance to April, 1977; (2) that they had agreed that counsel for plaintiffs would obtain the continuance; (3) that counsel for plaintiffs appeared to request a continuance and was told that counsel for defendant had already received a continuance, to April 27, 1977; (4) that counsel for plaintiffs examined the minute book and perceived that it reflected the trial date as April 27, 1977; and (5) that counsel for plaintiffs never received any notice from defendant or his counsel that defendant expected the cause to be heard on July 11, 1977, rather than in April, 1977, as had been agreed.

Pursuant to his petition to vacate and prior to the hearing thereon, defendant also filed an affidavit, by one Mr. Lurie, the lawyer from the office of defendant's counsel who appeared in court on December 20, 1976, to request a continuance. In his affidavit, Mr. Lurie stated that he sought to continue the cause by agreement to the first week in April, but the clerk gave him July 11, 1977, as the next trial date, which date he marked in his diary, a copy of the entry being attached to his affidavit. Mr Lurie further stated that after he returned to his office he informed defendant's counsel that the cause was set for trial on July 11, 1977.

However, at the hearing on the petition to vacate, when asked whether he had in fact notified plaintiffs' counsel of the July 11, 1977, trial date, which plaintiffs' counsel denied, defendant's counsel stated that that was only their usual practice, that he did not recall specifically that it had been done in this case, and that he could not swear that it had been done. Accordingly, defendant sought vacatur based solely on the error or misprision of the clerk in giving defendant's counsel the July 11, 1977, trial date and in marking that date, rather than April 27, 1977, on the half-sheet.

In response, counsel for plaintiffs argued that he properly relied on the April trial date, as that was their understanding and that was the date that appeared in the minute book. Plaintiffs have further argued that the half-sheet makes no reference to July 11, 1977, as a trial date. While it is true that the entry relied upon by defendant is found under the column designated "PAPERS FILED AND WRITS ISSUED" and does not explicitly state that it is a trial date, in light of Mr. Lurie's affidavit and in view of the fact that the previous trial date was December 20, 1976, it is noteworthy the sequence of entries in that column is as follows:

SEP 15 1976 ROBERT G. MACKEY 12-20-76

DEC 20 1976 WALTER B. BIESCHKE JUL 11 1977

9/16/77 NOTICE OF APPEAL FLD

The trial court had no difficulty finding that these entries signified that on December 20 an order had been entered continuing the matter to July 11 and that the clerk had made an error.

However, plaintiffs chiefly resisted the petition to vacate, not on the ground that the clerk had not made an error, but that the petition was nevertheless insufficient because it failed to allege a meritorious defense, or facts in support thereof, to the original cause of action. Defendant's counsel responded:

. . . we obviously feel there is a meritorious defense.

Our client is obviously not guilty of this whole thing that they are alleging, and we are ready to proceed and prove that up. We are ready to proceed on trial. We have witnesses. The whole thing to say that he is, in fact, not guilty of this conversion.

When the court indicated that it was inclined to grant the petition on the basis of the clerk's mistake, counsel for plaintiffs renewed his argument that the petition was nevertheless insufficient because it failed to allege facts in support of the contention that there was a meritorious defense. The following colloquy ensued:

THE COURT: Well, shall I now say to this gentleman, "Go back and prepare another petition or amend our file and amend the petition and set forth your defense"? Is that going to resolve anything? Is that going to help you, to help everybody, to help The Court; because obviously, he will. I think under the circumstances if there was a mistake, some error...