Silny v. Lorens

• Citation: 73 Ill.App.3d 638,29 Ill.Dec. 710,392 N.E.2d 267
• Decision Date: 25 June 1979
• Docket Number: No. 78-943,78-943
• Parties: , 29 Ill.Dec. 710 George SILNY, Plaintiff-Appellant, v. Mitch LORENS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 267

392 N.E.2d 267 73 Ill.App.3d 638, 29 Ill.Dec. 710 George SILNY, Plaintiff-Appellant,
v.
Mitch LORENS, Defendant-Appellee. No. 78-943. Appellate Court of Illinois, First District, First Division. June 25, 1979.

[73 Ill.App.3d 639]

Page 268

[29 Ill.Dec. 711] Thomas M. Joyce, Chicago, for plaintiff-appellant.

Feiwell, Galper & Lasky, Ltd., Chicago, Michael J. Kralovec, Chicago, for defendant-appellee.

McGLOON, Justice:

In September of 1977, the trial court entered a default judgment in favor of plaintiff, George Silny, and against defendant Mitch Lorens, in the amount of $3,000. Several months subsequent to the judgment, Lorens filed a petition under section 72 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 72) seeking a vacatur of the judgment. The trial court granted the petition, vacated the judgment, and set the cause for trial. Silny then filed a special and limited appearance and moved the court to vacate its order granting the section 72 petition. Silny argued that he was not served properly with the petition and that the trial court lacked jurisdiction to entertain the motion. The trial court denied Silny's motion. Silny now appeals from both the order granting the section 72 petition and the order denying his motion to vacate that order.

Silny argues that the trial court erred in entering the above orders because it lacked jurisdiction to hear the section 72 petition. Silny bases his argument on the fact that Lorens failed to comply with the provisions in Supreme Court Rules 105 and 106 (Ill.Rev.Stat.1977, ch. 110A, pars. 105, 106) concerning the notice requirements of a petition filed under section 72 of the Civil Practice Act.

We reverse and remand.

In February of 1977, plaintiff filed a complaint against Alscot Corporation, d/b/a Ambassador Air Conditioning. The complaint alleged in substance that plaintiff performed services for the corporation and had never been paid. Alscot Corporation responded with a motion to dismiss the complaint and attached exhibits reflecting that the Alscot Corporation had been dissolved more than two years prior to the filing of the above complaint. Pursuant to the above motion, the trial court ordered that the complaint be dismissed. Silny then filed a motion captioned "Motion to Amend Complaint" which sought in part to vacate the order of dismissal, dismiss the complaint as to Alscot Corporation, and add Mitch Lorens as a defendant. On June 1, 1977, the trial court entered an order vacating the prior order of dismissal, dismissing Alscot Corporation without prejudice, and adding Mitch Lorens as a defendant. Lorens was then served with summons through his wife. Lorens failed to file an appearance and on September 15, 1977, after a hearing at which [73 Ill.App.3d 640] plaintiff proved damages in the amount of $3,000, the trial court entered a default judgment against Lorens in that amount.

Several months subsequent to the entry of the default judgment, Lorens filed a petition under section 72 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 72) seeking a vacatur of the default judgment. Attached to the petition was the affidavit of Mitch Lorens indicating that Lorens had retained attorneys to represent the original defendant, Alscot Corporation; that at all times Lorens believed the matter was being handled by the attorneys; and that it was not until after receipt of a citation to discover

Page 269

[29 Ill.Dec. 712] assets set for November 3, 1977 that he learned a judgment had been entered against him personally.

Defendant served the section 72 petition and notice of motion setting a hearing for December 2, 1977 on Mr. John Curielli, an attorney who had represented the plaintiff in the original action. For reasons which do not appear of record, no action was taken on December 2, 1977. On December 15, 1977 the trial court vacated the order granting the default judgment. On December 27, 1977 plaintiff, through his attorney, Thomas Joyce, filed a special and limited appearance to contest the jurisdiction of the court to grant the section 72 petition. In his motion, Silny contended that he had never been served with proper notice of the petition and requested the court to vacate its order granting the petition. Attached to the motion was the affidavit of plaintiff's original attorney, John Curielli. The affidavit stated that Mr. Curielli was the attorney for Silny until shortly after the commencement of collection proceedings against Lorens and that on his advice Silny retained Thomas M. Joyce, an attorney, to...