Trisko v. Vignola Furniture Co.

• Decision Date: 19 June 1973
• Docket Number: No. 56115,56115
• Parties: Stephen TRISKO, Plaintiff-Appellant, v. VIGNOLA FURNITURE COMPANY, an Illinois corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 421

299 N.E.2d 421

12 Ill.App.3d 1030

Stephen TRISKO, Plaintiff-Appellant, v. VIGNOLA FURNITURE COMPANY, an Illinois corporation,

Defendant-Appellee.

No. 56115.

Appellate Court of Illinois, First District, Second Division.

June 19, 1973.

Jay S. Judge, Arlington Heights, for plaintiff-appellant.

Mass, Miller & Josephson, Chicago, for defendant-appellee; Thomas A. Mass, Jr., Chicago, of counsel.

LEIGHTON, Justice:

This appeal involves a controversy between the plaintiff, Stephen Trisko, and the defendant, Vignola Furniture Company, concerning 'two tufted love seats' which plaintiff purchased from defendant for $1,008. The transaction was evidened by a written contract dated on or about April 28, 1967.

On June 12, 1970, acting as his own lawyer, Trisko filed a suit in which he alleged that, when defendant made the sale, it '* * * warranted both expressly and impliedly that the love seats were of merchantable quality'; that on or about June 1, 1967, he discovered the seats were defective and gave defendant immediate notice of this fact; that defendant breached the express and implied warranty it made at the time of the sale. Plaintiff prayed for judgment in the sum of $1,000 and costs. Summons was served on June 16, 1970; but defendant did not appear, nor did it file an answer to plaintiff's complaint. On September 23, 1970, a default judgment was entered in favor of plaintiff in the sum of $1,000 and costs. Thereafter, by a letter received on October 2, plaintiff advised defendant of the default and furnished it with a copy of the judgment. On October 16, 1670, execution was served on defendant; and levy on its property was made by the sheriff on December 5, 1970. On December 7, defendant appeared in court for the first time and filed a petiton to set aside the default judgment.

In its petition, defendant admitted having been served with summons but alleged that one of its principal officers visited plaintiff to ascertain the nature of his complaint; that plaintiff told defendant of his dissatisfaction with the merchandise he had purchased; that defendant agreed with plaintiff to repair the merchandise and plaintiff verbally agreed with defendant to withhold action in the suit until the repairs were complete; that defendant unsuccessfully attempted to obtain the love seats from plaintiff in order to repair them; and defendant thereafter learned that on September 23, 1970 plaintiff had obtained the default judgment in breach of the verbal agreement. Defendant prayed that the judgment be set aside. Plaintiff filed a written objection in which he denied the material allegations of defendant's petition. After hearing arguments of counsel, the trial court sustained defendant's petition, opened the judgment with leave to defend, and stayed all proceedings until further order of the court. Contending that this ruling was error, plaintiff appeals. Three issues are presented for our review. I. Whether the order that set aside the default judgment was final and appealable. II. Whether either party to this appeal is entitled to an award of reasonable expenses and reasonable attorney's fees under the provisions of section 41 of the Civil Practice Act. III. Whether on defendant's petition it was proper for the trial court to open the default judgment and give defendant leave to defend.

I.

Defendant's petition to set aside the default judgment was verified and was filed more than 30 days after the judgment was entered. Therefore, it must be construed as having been filed under section 72 of the Civil Practice Act, Ill.Rev.Stat.1969, ch. 110, par. 72. (Schuman v. Department of Revenue, 38 Ill.2d 571, 232 N.E.2d 732; Mehr v. Dunbar Builders Corporation, 7 Ill.app.3d 881, 289 N.E.2d 25.) Plaintiff objected to the petition and denied its material allegations. The objections were not verified; however, lack of verification of plaintiff's objections was not raised in the trial court; it cannot be raised in this appeal. Hopkins v. Kraft Foods Co., 44 Ill.App.2d 373, 194 N.E.2d 680.

Concerning the reasons for the order sustaining the petition, we do not have the benefit of a trial court opinion. Under these circumstances, we will assume that all of plaintiff's objections were overruled and that defendant's contentions were sustained. Rector v. Board of Appeals, Under Zoning Ordinance of City of Danville et al., 342 Ill.App. 51, 95 N.E.2d 99; compare Macie v. Clark Equipment Co., 8 Ill.App.3d 613, 290 N.E.2d 912.

As we have pointed out, defendant's petition was a proceeding under section 72 of the Civil Practice Act. It is the law in this State that an order denying or granting any relief prayed for in such a petition is final and appealable. The time to appeal does not begin to run until disposition of a motion to vacate the order granting or denying relief. (Werner v. International Association of Machinists, 11 Ill.App.2d 258, 137 N.E.2d 100; Holcomb v. Flavin, 37 Ill.App.2d 359, 185 N.E.2d 716; Central Bond & Mortgage Co. v. Roeser, 323 ill. 90, 153 N.E. 732; Schuman v. Department of Revenue, 38 Ill.2d 571, 232 N.E.2d 732; Lynn v. Multhauf, 279 Ill.App. 210; Davis Furniture Co. v. Young, 102 Ill.App.2d 415, 242 N.E.2d 457; see Annot., 8 A.L.R.3d 1272.) Therefore, the order that sustained defendant's petition and opened the default judgment with leave to defend was final and appealable.

II.

This being so, the appeal is properly before us. However, this is not true of every issue presented. For example, we are requested to decide whether either party is entitled to an award of reasonable expenses and reasonable attorney's fees under the provisions of section 41 of the Civil Practice Act. This request is made despite the fact that, when the trial court sustained defendant's petition, it reserved ruling on assessment of attorney fees and costs. It is well settled that we do not have authority to consider a matter not passed on by the trial court or one which, because of a ruling on a motion, was left unresolved. (Waupoose v. Kusper, 8 Ill.App.3d 668, 290 N.E.2d 903; Murphy v. Kumler, 344 Ill.App. 287, 100 N.E.2d 660; see Cohn v. Receivable Finance Co., 7 Ill.App.3d 869, 288 N.E.2d 894.) Therefore, we will not decide whether either party to this appeal is entitled to an award of reasonable expenses and reasonable attorney's fees under the provisions of section 41 of the Civil Practice Act.

III.

We turn, then, to the issue dispositive of this appeal: whether on defendant's petition it was proper for the trial court to open the default judgment and give defendant leave to defend. In doing so, we observe that the judgment was entered after the trail court heard plaintiff's evidence, argument of his counsel, and, based on the undenied complaint, made findings in his favor. In evaluating these findings, we notice plaintiff's allegations that on or about April 28, 1967, under a written contract that expressly and impliedly warranted their...