Smyth v. Fargo, 14967.

• Court: Supreme Court of Illinois
• Citation: 138 N.E. 610,307 Ill. 300
• Docket Number: No. 14967.,14967.
• Parties: SMYTH v. FARGO et al.
• Decision Date: 06 April 1923

307 Ill. 300
138 N.E. 610

SMYTH
v.
FARGO et al.

No. 14967.

Supreme Court of Illinois.

Feb. 21, 1923.
Rehearing Denied April 6, 1923.

Error to First Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; S. C. Stough, Judge.

Action by Hugh P. Smyth, administrator, against Charles E. Fargo and another. From a judgment of the Appellate Court (225 Ill. App. 660) affirming a judgment and order of the superior court, defendants bring certiorari.

Judgment affirmed.

Cartwright, J., dissenting.

[138 N.E. 611]

[307 Ill. 301]Jay Fred Reeve, Bernard W. Vinissky, and Emmet Trainor, all of Chicago, for plaintiffs in error.

C. Helmer Johnson, of Chicago (Arthur H. Chetlain, of Chicago, of counsel), for defendant in error.

FARMER, J.

This court granted the prayer of the petition for certiorari of plaintiffs in error to bring up for review a judgment of the Appellate Court affirming a judgment and order of the superior court vacating and setting aside a judgment dismissing the case for want of prosecution.

Hugh P. Smyth, administrator of the estate of Francis McNerney, deceased, brought suit against Charles E. Fargo and Louise B. Fargo to recover damages for the death of McNerney, alleged to have been caused by the negligent operation of an automobile by defendants. Defendants filed pleas to the declaration. The case was placed on call for trial before Judge Cooper December 1, 1920. Its title as printed on the calendar of the trial court and on the judge's docket of trial call cases was, ‘Smuth, Adm'r, v. Fargo et al.’ When it was called for trial neither party to the suit answered, and an order was entered dismissing the suit for want of prosecution. March 5, 1921, upon leave granted, defendant in error filed a motion, supported [307 Ill. 302]by affidavits, to set aside the order dismissing the case for want of prosecution and to reinstate it. The motion, in substance, alleged the plaintiff had a meritorious cause of action; that the judgment dismissing the case was inadvertently and improperly entered without fault of plaintiff; that through misprision of the clerk in preparing the printed calendar and misprision of Judge Cooper's minute clerk in posting the trial call November 30, 1920, of cases for trial December 1, 1920, the case was wrongfully entitled Smuth, Adm'r, v. Fargo et al., and plaintiff had no information his case was on the trial call or was subject to trial December 1; that the judgment dismissing the case was entered through an error of fact through the misprision of the clerk. The motion alleged the misprision of the clerk in entitling the case Smuth, Adm'r, v. Fargo et al., caused the court to believe the cause was properly called for trial in due course, and the fact was unknown to the court that the case on trial call was Smyth, Adm'r, v. Fargo et al., and that if the court had known of the error, he would not have dismissed the case.

By a rule of the superior court, cases are called for trial in their order on the calendar, and the call for each day is announced before the adjournment of the court the preceding day. The motion was supported by the affidavit of C. Helmer Johnson, one of plaintiff's attorneys, and the affidavit of a clerk in his office, that they were diligent in consulting the printed calendar and trial call, but because the case was wrongly on both as Smuth, Adm'r, v. Fargo et al., they did not recognize it and identify it as Smyth, Adm'r, v. Fargo et al., and they therefore were unaware it was on the call for trial December 1. Defendants were ruled to plead or demur to the motion within 15 days. The defendants filed what they call an answer, denying the judgment of dismissal was inadvertently and...