Smith v. Pappas
| Decision Date | 17 June 1969 |
| Docket Number | Gen. No. 52866 |
| Citation | 112 Ill.App.2d 129,251 N.E.2d 390 |
| Parties | Eva Elaine SMITH, Thelma Rogers, and King David Smith, plaintiffs-Appellees, v. Alexander A. PAPPAS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James M. Patek, William M. Flaherty, John J. O'Connor, Chicago, for defendant-appellant.
Rosengard & Hecht, Chicago, for appellees; Eugene Lieberman and Bernard W. Moltz, Chicago, of counsel.
This is an appeal from an order entered on November 20, 1967, vacating an order of dismissal entered December 16, 1965 for plaintiffs' failure to answer defendant's interrogatories.
On September 1, 1965 plaintiffs filed their actions for personal injuries alleged to have been sustained in an automobile accident, the action of each plaintiff being set out in a separate count of a single complaint. The defendant filed his answer, jury demand, and three sets of written interrogatories, one set for each plaintiff. The plaintiffs, in turn, filed interrogatories and objections to defendant's interrogatories, but failed to call for a hearing on the objections filed. On December 16, 1965, the trial court sustained defendant's motion that plaintiffs' complaint be stricken and the suit dismissed for failure to answer defendant's interrogatories within the time prescribed by rule.
Plaintiffs, on August 10, 1967, filed a Section 72 Petition (Ill.Rev.Stat. Chapter 110, Section 72) praying vacation of the order of dismissal. The petition alleged as grounds for the relief that counsel had agreed to answer each other's interrogatories and not to appear at the scheduled hearing on defendant's motion for dismissal for failure to answer interrogatories. The petition further alleged that counsel for defendant appeared and obtained an order of dismissal notwithstanding the agreement. On November 20, 1967, the prayer of the petition was granted, the order of dismissal vacated, and the cause placed on the jury calendar. It is from the order of November 20, 1967, that defendant prosecuted this appeal.
The defendant-appellant contends that plaintiffs failed to demonstrate sufficient grounds for relief under Section 72 of the Civil Practice Act. A reviewing court, in situations such as the present where the record does not contain a report of the proceedings and where the order appealed from recites that the court is fully advised in the premises, must presume that the court acted in conformity to law and had before it sufficient facts to support its order. Boyle v. Veterans Hauling Line, 29 Ill.App.2d 235, 172 N.E.2d 512, 87 A.L.R.2d 861 (1961). We do not, therefore, consider the merits of the action, and there remains to be considered only the sufficiency of the petition.
A petition under Section 72 of the Civil Practice Act, although filed in the original proceeding, is not a continuation thereof, but is treated as a new action. It is subject to the same rules of pleading as any other action, and therefore the petition must state adequate grounds for relief and petitioners' entitlement thereto. Mutual National Bank of Chicago v. Kedzierski, 92 Ill.App.2d 456, 236 N.E.2d 336 (1968); Wilson v. Wilson,56 Ill.App.2d 187, 205 N.E.2d 636 (1965). The only question with respect to the petition which this court may consider is whether it totally fails to state a cause of action and is thus insufficient to support the order of the court below, less serious defects, if any, having been waived by defendant-appellant's having failed to challenge the sufficiency of the petition in the trial court. De Jarnett v. Roseborough, 94 Ill.App.2d 164, 236 N.E.2d 276 (1968); Grizzard v. Matthew Chevrolet, Inc., 39 Ill.App.2d 9, 188 N.E.2d 59 (1963).
The defendant-appellant contends that the petition is totally defective by reason of plaintiffs having failed to allege facts in support of the...
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