Storm v. Ben-Lee Motor Service Co., Inc.

• Decision Date: 07 May 1973
• Docket Number: BEN-LEE,No. 56284,56284
• Citation: 11 Ill.App.3d 516,298 N.E.2d 315
• Parties: George R. STORM, Plaintiff-Appellant, v.MOTOR SERVICE COMPANY, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 315

298 N.E.2d 315

11 Ill.App.3d 516

George R. STORM, Plaintiff-Appellant, v. BEN-LEE MOTOR SERVICE COMPANY, INC., Defendant-Appellee.

No. 56284.

Appellate Court of Illinois, First District, First Division.

May 7, 1973.

Gerard C. Heldrich, Jr., Chicago, for plaintiff-appellant.

Sol L. August and Lawrence Jacobs, Chicago, for defendant-appellee.

EGAN, Justice:

This is an appeal from an order entered pursuant to a petition brought under Section 72 of the Civil Practice Act, (Ill.Rev.Stat.1969, ch. 110, sec. 72), vacating an Ex parte judgment entered against the defendant, Ben-Lee Motor Service Company, Inc., in a contract action and reinstating the defendant's counterclaim.

The plaintiff, George R. Storm, filed a complaint for breach of contract alleging damages of $11,037.39. The defendant, Ben-Lee Motor Service Company, Inc., filed its Answer and Counterclaim for the sum of $20,000 against the plaintiff and $20,000 against four third-party defendants.

On August 31, 1970, cases pending in the Law Division with an Ad damnum of $15,000 or less were ordered transferred to Municipal District One, Municipal Department, Circuit Court of Cook County. This case appeared in the listing of such trans-September 15, 1970. On September 30, ferred cases in the Daily Law Bulletin on 1970, another order was issued transferring back to the Law Division cases that were mistakenly transferred to Municipal District One that had an Ad damnum of over $15,000. That published list did not include this case.

On March 3, 1971, pursuant to notice in the Daily Law Bulletin, the case was called for trial before Jude Charles P. Horan in the First Municipal District. It was continued until March 25, 1971, because neither the defendant nor its attorney appeared. The plaintiff and one of the third-party defendants were present, and they appeared again on March 25, 1971. Again neither the defendant nor its attorney were present. Judge Horan dismissed the defendant's counterclaim and cross-complaint against the third-party defendants. After hearing evidence on the original complaint, the jury returned a verdict for $11,213.89.

On May 14, 1971, the plaintiff had a citation to discover assets served upon the National Bank of Albany Park. That afternoon the plaintiff received a telephone call from Judge Horan explaining that the attorney for the defendant was in his chambers and that he was vacating the order of March 25, 1971, because there had been an error on the part of the court clerk's office and that this case should not have been assigned from the Law Division to the Municipal Division since the defendant's counterclaim exceeded $15,000. The same day Judge Horan issued an order vacating the judgment, reinstating the counterclaim, and transferring the case to the Presiding Judge for reassignment to the Law Division.

On May 27, 1971, pursuant to the written motion of the plaintiff, the court vacated its order of May 14, 1971, and the case was set for hearing on the motion call for June 24, 1971. On that date, the defendant filed a Section 72 petition and the plaintiff filed a motion to strike and dismiss. After a hearing Judge Horan allowed the defendant's petition, vacated the judgment, and reinstated the counterclaim.

The plaintiff contends that the defendant has failed to allege or prove a meritorious defense, due diligence or unconscionable circumstances justifying the invocation of the court's equitable powers.

The verified petition of the defense attorneys, Sol August and Lawrence Jacobs, alleged as follows: On September 16, 1970, following the announcement that the case had been transferred to the Municipal Department, August appeared in the office of Chief Judge Boyle and pointed out that the case should not have been transferred because the amount involved exceeded $15,000. He was referred to Irving Gold, the Assistant Chief of Records. Pursuant to instructions from Gold, the attorney wrote out the title and number of the case and was assured by Gold that the case would be transferred back to the Law Division. In the days that followed, he checked the daily call of the Law Division appearing in the Chicago Daily Law Bulletin, and this case did not appear.

He first learned of the judgment when his client was notified by the National Bank of Albany Park of the summons that had been served upon it. Upon learning of the judgment, the attorneys searched the files and docket in the Law Division, then in the Municipal District, and discovered that the judgment had been entered in the Municipal District. They took the file into the office of Charles J. Visk, Chief of Court Records, who took them to Judge Horan's chambers. After reviewing the file Judge Horan made a telephone call to the plaintiff's attorney, Mr. Heldrich, informing him that the order of March 25th would be vacated. The judge advised Mr. Heldrich to contact the National Bank of Albany Park and advise them of the situation.

The plaintiff's motion to strike and dismiss alleges in substance that various paragraphs of the...