Topel v. Pers. Loan & Sav. Bank

• Decision Date: 08 June 1937
• Docket Number: Gen. No. 39292.
• Court: United States Appellate Court of Illinois
• Parties: TOPEL v. PERSONAL LOAN & SAVINGS BANK.

290 Ill.App. 558

9 N.E.2d 75

TOPEL

v.PERSONAL LOAN & SAVINGS BANK.

Gen. No. 39292.

Appellate Court of Illinois, First District, Second Division.

June 8, 1937.

Appeal from Circuit Court, Cook County; George Fred Rush, Judge.

Action by Edward Topel against the Personal Loan & Savings Bank. From a judgment order vacating a judgment of dismissal, defendant appeals.

Reversed and remanded, with directions. Taylor, Miller, Busch & Boyden, John S. Miller, and Morris Leibman, all of Chicago, for appellant.

Alfred M. Loeser, Yellen & Grant, George Yellen, and Morris Leibman, all of Chicago, for appellee.

JOHN J. SULLIVAN, Presiding Justice.

This action was commenced February 18, 1932, and was dismissed April 21, 1936, for want of prosecution by Judge Walter W. Wright. This had been the third dismissal for the same reason, the cause having been reinstated twice theretofore without objection by defendant. September 17, 1936, almost five months and as many terms after the third order of dismissal, plaintiff filed a petition to vacate said order of dismissal of April 21, 1936. Judge Rush upon the filing of said petition, without requiring or permitting defendant to file a pleading of any kind to it and without requiring plaintiff to present any evidence in support of the allegations thereof, entered an order vacating the judgment of dismissal over defendant's objection. This appeal seeks to reverse said judgment order of September 17, 1936.

The only pleading involved is plaintiff's petition to vacate filed September 17, 1936, and the affidavit thereto attached. The allegations of said petition are as follows:

“1. Your petitioner, Alfred M. Loeser, respectfully represents unto this Honorable Court that he is the attorney for the plaintiff in the above entitled cause; that he has been diligently engaged in watching the said cause and that through error or misprision, the said cause was dismissed, along with a group of other cases, for the reason that no orders had been entered for two years immediately thereto preceding.

“2. Your petitioner further says that there had been orders entered in said cause immediately preceding, in January and February, 1936, by Judge Wimbiscus and in November, 1935.

“3. Your petitioner further says that the said cause was erroneously dismissed in that it was upon the call of Judge Cummings set for the 30th day of March, 1936, in Room 1125, and that during the same period of time appears to have come up before Judge Wright who was taking the place of Judge Wimbiscus, Room 1124, which said appearance upon the call of Judge Wright was unknown to Michael Tito, the law clerk of this petitioner who was charged with the duty of watching said cause and was diligently attempting to perform such duty.

“4. Your petitioner further says that through no fault of said Michael Tito and because of the fact that the said cause was on both calls, the said cause came up, among a group of cases, on the 21st day of April, 1936, before the Honorable Judge Wright, sitting in Room 1124, instead of before Judge Cummings, Room 1125, where the record of this office of your petitioner had shown it to be, at which time the said cause was dismissed.

“5. Your petitioner further says that even the clerk himself knew nothing of such dismissal, which was inadvertently made, and placed the same upon the 1936 Calendar No. 1 as number 152, and whereupon, at a preliminary call of the cases, it became apparent to counsel that the cause had been inadvertently dismissed, on the 14th day of September, 1936; wherefore he immediately investigated said cause and proceeded to obtain an affidavit of said Michael Tito with the utmost of diligence, a copy of which affidavit is attached hereto, made a part hereof and marked ‘Petitioner's Exhibit A.’

“6. Wherefore, your petitioner prays this Honorable Court that it enter an order vacating the said dismissal of the said cause of April 21, 1936, in conformance with the Statutes in such cases made and provided.”

The affidavit averred:

“1. Michael Tito being first duly sworn on oath deposes and says that he is by occupation, a law clerk, in the City of Chicago, county and state aforesaid.

“2. Affiant further says that during the times hereinafter mentioned he was employed as a law clerk in the offices of Alfred M. Loeser, the attorney for the plaintiff in the above entitled cause.

“3. Affiant further says that he resides at 1109 South Jefferson Street in the City of Chicago.

“4. Affiant further says that he was charged with the duty of watching the said case in the said law office of Alfred M. Loeser and accordingly was in the commission of the said duties watching the said case.

“5. Affiant further says that the said case came up for hearing in Room 1124 on the 19th day of March before Judge Wright.

“6. Affiant further says that he was informed that said cause was upon Judge Cummings call in 1125.

“7. Affiant further states that accordingly, he watched the said cause from time to time, and on the 30th day of March, 1936, in Room 1125, the said cause was set before Judge Cummings.

“8. Affiant further says that he spoke to the clerk at said time aforementioned and the clerk advised him that there were a great many cases ahead of it and that said cause would appear upon the said call and that he should just watch Judge Cummings call from time to time.

“9. Affiant further says that the said Judge Wright was sitting in the same place and performing the same duties as that of Judge Wimbiscus; that previously the said cause had been through error of the clerk dismissed for the supposed reason that there had been no orders entered within two years immediately preceding that time, which said dismissal was vacated and set aside.

“10. Affiant further says that said Judge Wimbiscus in conformance with his duties under rule of this court dismissing all causes where no orders had been entered within two years immediately preceding thereto, dismissed a group of cases on the 21st day of April.

“11. Affiant further says that he was watching the call of Judge Cummings for the said cause assuming that the said cause would be upon said Judge Cummings' call, and further that said Alfred M. Loeser was ready to try the said cause at any time it would be reached for trial and, that he or said attorney had no notice that the said cause was dismissed.

“12. Affiant further says that no other person had any such notice, and that it was an inadvertent misprision of the clerk, as will more readily be seen from the fact that the clerk's office had no knowledge of such dismissal, in light of the fact that the said cause was placed upon the calendar for 1936, as Number 152, where it is at this time.

“13. Affiant further says that the plaintiff has a good and sufficient cause of action; that the plaintiff has been diligent and is ready to proceed to trial at an early date, and prays this Honorable Court that it vacate the said order of dismissal of the 21st day of April, 1936, in conformance with the statutes in such cases made and provided.”

The full text of the order entered by Judge Rush September 17, 1936, is as follows:

“On motion of Alfred M. Loeser, attorney for plaintiff in the above entitled cause, after due notice served and the Court having read the petition of Alfred M. Loeser, petitioner, attorney for plaintiff, and accompanying affidavit thereto attached for good cause shown it is hereby

“Ordered that the order dismissing the cause of April 21st, 1936, be and is hereby vacated and set aside.

“It is further ordered that the Clerk of this Court set the cause for trial at an early date.”

This order clearly shows that it was entered solely upon the petition and affidavit filed by plaintiff September 17, 1936. Pursuant to notice served September 22, 1936, defendant filed a written motion September 24, 1936, to vacate the order of September 17, 1936, and for leave to file its petition to dismiss plaintiff's aforesaid petition of September 17, 1936.

Defendant's petition of September 24 1936, alleged inter alia that “over the defendant's objection and request for the right to file a pleading to the petition and set the matter for hearing as a contested motion, Judge Rush then and there entered an order vacating the order of dismissal entered April 21, 1936, by Judge Wright.”

The record discloses that Judge Rush made no ruling definitely disposing of defendant's motion to vacate the order of September 17, 1936, and for leave to file its petition to dismiss plaintiff's petition of December 17, 1936, but did enter the following order on September 24, 1936:

“This cause coming on to be heard on due notice and the court having heard the arguments of counsel for both parties,

“It is hereby ordered, adjudged and decreed that the record in this cause show that the defendant duly objected and excepted to the entry of the order heretofore entered on September 17, 1936.”

Inasmuch as we have concluded that this judgment should be reversed and the cause remanded, it is necessary to consider only defendant's contention that the trial court erred in entering the judgment order of September 17, 1936, over its objection and without first giving it the right to file a pleading to plaintiff's petition to vacate the order of dismissal, and without requiring plaintiff to present evidence in support of his said petition.

Plaintiff's theory is that the petition and affidavit filed in his behalf set forth errors of fact sufficient under section 72 of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 196) to empower the trial court to vacate the order of dismissal of April 21, 1936, after the expiration of the term at which it was entered and that Judge Rush did not err in so doing.

Section 72 of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 196, Ill.Rev.Stats.1935, c. 110, par. 200) provides as follows: “The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of...