Till v. Kara, A-W

• Court: United States Appellate Court of Illinois
• Citation: 161 N.E.2d 363,22 Ill.App.2d 502
• Docket Number: Gen. No. 11283,A-W
• Parties: Anton TILL, Jr., Plaintiff-Appellee, v. Emily KARA, individually and doing business as Hide-ay Tavern, and Jerry C. Kara, Defendants-Appellants.
• Decision Date: 28 September 1959

Page 363

161 N.E.2d 363 22 Ill.App.2d 502 Anton TILL, Jr., Plaintiff-Appellee,
v.
Emily KARA, individually and doing business as Hide-A-Way
Tavern, and Jerry C. Kara, Defendants-Appellants. Gen. No. 11283. Appellate Court of Illinois, Second District, Second Division. Sept. 28, 1959.

[22 Ill.App.2d 503] Stickgold & Mullin, Chicago, for plaintiff.

C. Russell Allen, Woodstock, Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, for defendants.

SOLFISBURG, Justice.

On November 26, 1957, the plaintiff filed his complaint under Section 14 of Article VI of the Liquor Control Act (Ill.Rev.Stats.1957, Chap. 43, par. 135) against Emily Kara, Jerry C. Kara and Carl Cavitt, to recover damages for injuries sustained as a result of an automobile collision. Cavitt was alleged to have become intoxicated from liquor obtained in a tavern operated by Emily Kara, located on premises owned by Emily Kara and Jerry C. Kara. All the defendants were served with process on December 1, 1957. The defendant Cavitt failed to enter his appearance or to plead to the complaint and a default order and default judgment were entered against him; no question has been raised concerning the judgment by default against defendant Cavitt.

Two attorneys employed by defendants Emily Kara and Jerry C. Kara entered

Page 364

their appearance as attorneys for these defendants on January 7, 1958, secured an extension of time within which to plead to the plaintiff's complaint, and in due course filed an answer to the complaint on January 27, 1958, denying the material allegations of the complaint. On March 17, 1958, upon motion of the plaintiff and after proper [22 Ill.App.2d 504] notice, the court ordered the cause placed on the June A.D. 1958 trial call. At the same time the plaintiff directed certain interrogatories in writing to the attorneys for the defendants Kara. On April 9, 1958, or approximately one month after the case was placed upon the June 1958 trial call, the two attorneys representing the defendants Kara served notices in person upon counsel for plaintiff and by registered mail, return receipt requested, upon Emily Kara and Jerry C. Kara that on April 14, 1958, at the opening of court in the forenoon they would appear before the presiding judge of the Circuit Court of Lake County and 'then and there move for leave to file their withdrawal of appearance as attorneys of record' in this cause 'for your failure to cooperate with or otherwise assist the undersigned [attorneys] in the preparation of your defense, at which time and place you may appear if you see fit so to do. You and each of you are further notified that you should file a special appearance or otherwise furnish the Clerk of the Court with a Lake County, Illinois, address to which notices may be served upon you. (Signatures).'

Thereafter, on April 14, 1958, the two attorneys by leave of court filed their withdrawal of appearance in accordance with the notices previously served. The defendants Emily Kara and Jerry C. Kara filed no appearance nor did any attorney on their behalf. On June 17, 1958, when the case was called for trial on the regular call of the June 1958 jury cases, neither the defendants nor anyone on their behalf appeared, whereupon the plaintiff waived his jury demand, and the cause was submitted to the court for trial without a jury. The court entered a judgment order finding the defendants and each of them guilty, assessed plaintiff's damages in the sum of $15,000, and ordered that plaintiff have judgment and execution for that sum plus costs. Execution was issued on August 15, 1958, [22 Ill.App.2d 505] and served upon the defendants on August 18, 1958. On August 21, 1958, the defendants Kara, by one of the attorneys who had previously represented them in the case, served notice on plaintiff's counsel that they would appear in court in August 25, 1958, and present a petition to vacate the judgment rendered on June 17, 1958, and for leave to appear and defend the action. The court granted defendants leave to file additional affidavits and supporting suggestions and plaintiff leave to file counteraffidavits, briefs, and an answer to suggestions, after consideration of which the court entered an order on October 17, 1958, denying the petition to vacate the judgment and confirming the judgment entered on June 17, 1958. The defendants subsequently, by leave of court, moved the trial court for a rehearing on their prior petition to vacate the judgment, and this latter motion was denied on December 1, 1958. This appeal by defendants-appellants followed.

The sole question raised by defendants-appellants before this court is whether by their affidavits they showed not only a meritorious defense but also due diligence in preserving their rights to entitle them to relief from the default judgment.

The affidavit of Gerald B. Mullin, attorney for the defendants, filed in support of their motion to set aside the default judgment, recited that about December 15, 1957, Jerry C. Kara, defendant, consulted him with reference to this case and advised him he had been served with a summons; that Kara was uncertain whether a dram shop insurance policy was in force to indemnify him from liability; that affiant and an additional attorney were retained by Kara and filed an answer to the complaint; that in March, 1958, Jerry C. Kara advised affiant that he had spoken with his insurance broker, that there was an insurance company who would employ counsel to defend this [22 Ill.App.2d 506] action and that...