Trojan v. Marquette Nat. Bank

• Decision Date: 27 October 1967
• Docket Number: Gen. No. 51506
• Parties: James TROJAN and Shirley Trojan, Individually and as parents and next friends of Debra Trojan and Frances Trojan, minors, Shirley Trojan, as Administrator of the Estate of Marie Trojan, a minor, Deceased and Donald Ambroz, Plaintiffs-Appellees, v. MARQUETTE NATIONAL BANK, Vincent T. Juzulenas, Louise Juzulenas, Daniel Sobol and Anna Sobol, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 160

232 N.E.2d 160

88 Ill.App.2d 428

James TROJAN and Shirley Trojan, Individually and as parents

and next friends of Debra Trojan and Frances Trojan, minors,

Shirley Trojan, as Administrator of the Estate of Marie

Trojan, a minor, Deceased and Donald Ambroz, Plaintiffs-Appellees, v. MARQUETTE NATIONAL BANK, Vincent T. Juzulenas, Louise

Juzulenas, Daniel Sobol and Anna Sobol,

Defendants-Appellants.

Gen. No. 51506.

Appellate Court of Illinois, First District, Second Division.

Oct. 27, 1967.

Louis P. Miller, Walter Soroka, Gregory L. Tumbarello, Chicago, for defendants-appellants.

Robert D. McHugh, Raymond S. Barish, Chicago, for plaintiffs-appellees.

LYONS, Presiding Justice.

This appeal emanates from an action originally brought by the plaintiffs, James Trojan et al., for damages for personal injuries, wrongful death and property damage resulting from a fire in an apartment building located at 4735 South Wolcott Street in the City of Chicago. The fire occurred on May 10, 1959. The premises were occupied by the plaintiffs as tenants, with the sole exception of plaintiff-Ambroz, then a guest. The building was alleged to have been under the ownership and control of the instant defendants, Daniel and Anna Sobol (husband and wife), as beneficial owners pursuant to a land trust agreement with the defendant-Marquette National Bank. Original codefendants, Vincent and Louise Juzulenas, as well as Marquette National Bank, were subsequently dismissed, with prejudice, from the action and are not parties to this appeal) the former for want of service of summons, the latter on motion of plaintiffs).

On November 19, 1965, the court below sitting without a jury, after consideration of ex parte testimony and exhibits offered in plaintiffs' behalf, entered a judgment against defendants Daniel and Anna Sobol, with damages being assessed in the aggregate amount of $105,946.00. This appeal is taken by said defendants from the entry of the court's subsequent order on April 7, 1966, which order denied defendants' motion and supplemental petition to vacate and set aside its ex parte judgment.

No questions have been raised on the pleadings. At issue however, and of particular relevance to the respective theories advanced by the parties, are certain circumstances attendant to the events preceding the ex parte hearing, the material portions of which are herewith set forth.

Plaintiffs' complaint at law was filed on July 10, 1959 and subsequently amended on November 7, 1961, to join Anna Sobol as an additional party defendant. Anna Sobol has never filed an answer to that complaint, nor does the name of an attorney in her behalf appear of record. Daniel Sobol, by and through his original attorney of record, Edward Fusek, did file an answer to the initial complaint.

After having prepared and filed an answer to the original complaint in Daniel Sobol's behalf, but prior to the filing of the amended complaint, Fusek on May 26, 1961, by leave of court, withdrew as counsel for said defendant. Thereafter on July 7, 1961, in response to certain interrogatories directed to Daniel Sobol, which had been served prior to Fusek's withdrawal answers to same in defendant's behalf were served and filed, which answers bore the signature:

'Edward S. Cody

Attorney for Daniel Sobol,

Defendant'

Save the affixation of the Cody signature to the aforesaid answers, no formal appearance by any attorney in Daniel Sobol's behalf, other than that of Fusek's appears in the common law record relative to the events preceding the default.

On November 5, 1965, upon the motion of plaintiffs, proper notice being served upon defendants personally, the court below entered an order permitting the withdrawal of plaintiffs' earlier jury demand and dismissing the defendant-Marquette National Bank with prejudice. Neither defendant appeared pro se by counsel in opposition to this motion.

On November 16, 1965, the instant case reached the trial call calendar of the court's common law division assignment judge. Again, neither defendant appeared personally or by counsel. Counsel for plaintiffs was similarly in absentia, his failure to appear being subsequently attributed to his required presence in an unrelated cause in another courtroom to which he had been assigned for trial by the same assignment judge. Absent any parties or counsel, the assignment judge, on his own motion, thereupon entered an order dismissing the cause for want of prosecution. His order was forwarded to the Clerk's office which dispatched notice of the order to the counsel for plaintiffs.

Later that same morning, counsel for plaintiffs appeared before the assignment judge calling his attention to the aforementioned circumstance. Upon oral motion of counsel, the judge entered an order vacating what he phrased his 'inadvertent' order of dismissal and reinstated the case on his docket. The judge had explained to counsel at that time that he could not simply void his earlier order because it had already been directed to the Clerk's office. No notice of either the order of D.W.P. or subsequent order setting it aside and reinstating the cause were ever served upon defendants or their alleged counsel.

The case again reached the assignment call on November 18, 1965, it being assigned out on that date to the trial judge. On November 19, 1965, an ex parte hearing before that judge was conducted in defendants' absence, there resulting of even date, a judgment in default of appearance in the amount totaling $105,946.00. Notice of said judgment was served upon the defendants personally by certified mail.

Seventeen days after entry of judgment (December 6, 1965), defendants, by counsel, Edward Cody, filed a verified motion (as well as subsequent supplemental petitions by leave of court) to vacate and set aside the default judgment. The motion and petitions alleged among other grounds: (1) that defendants have a meritorious defense, (2) that the action against Anna Sobol was barred by the Statute of Limitations, (3) that both defendants are of foreign origin, being almost totally ignorant of the English language, (4) that since September of 1961 defendant, Daniel Sobol, has suffered from a disabling stroke, and (5) that neither defendants nor counsel had been apprised of the November 16th orders of dismissal, vacation, or reinstatement. After several hearings, defendants' motion was denied, from which they bring this appeal.

It is defendants' theory of the case that the trial judge abused his discretion in refusing to vacate his prior judgment because: (1) the case having been dismissed and subsequently reinstated without notice, all the proceedings to follow thereby were void, and (2) the motion was timely, averred a good and meritorious defense, and should have been granted in the interest of justice.

It is plaintiffs' theory of the case that the motion to vacate was properly denied because (1) defendants have failed to show wherein they relied upon or were prejudiced by the order of reinstatement, (2) defendants, by Rule of Court, were not entitled to notice of a hearing on plaintiffs' motion for reinstatement, and (3) defendants' indifference toward the judicial process throughout is reflected in and manifestly supports the trial judge's exercise of discretion in denying their motion.

Regarding defendants' first theory, Edward Cody's failure to file a formal appearance on the standard court form provided, stands admitted. That fact notwithstanding, extensive argument has been offered in support of the proposition that Cody was, de jure, defendants' attorney of record from and after the date on which be had filed the answers to interrogatories under his own name in Daniel Sobol's behalf.

The defendants' theory is lodged in Supreme Court Rule 7(1) (Ill.Rev.Stat. (1965) Chap. 110, par. 101.7(1)) which requires notice of all motions, subsequent to the court process and complaint, to be served upon the attorney of record, in instances where service of such is incumbent upon the movant. Ostensibly at least, the importance of Rule 7(1) to the case at bar would appear to be more significant in view of plaintiffs' tacit admission that, in fact, no notice of their motion to vacate the order of dismissal had been served upon cither defendant or Cody. We do not, however, consider this allegation to be dispositive of this particular issue.

A portion of our reason is found in Rule 2.1 of the Circuit Court of Cook County. That rule defines those notices which are required and provides for the service in the manner prescribed by Supreme Court Rule 7. Rule 2.1, in essence, was designed to embrace Supreme Court Rule 5(2) (Ill.Rev.Stat. (1965) Chap. 110, par. 101.5(2)), upon which defendants rely, with slight, but consistent modifications for efficient implementation to the practice in the Circuit Court of the county.

It is important to point out that Rule 2.1, by use of the conjunctive, requires notice of all hearings on motions with but two exceptions; namely, (1) notice is not required in actions appearing on the daily trial call, and (2) otherwise, notice is required only upon persons who have appeared And who have not theretofore been found by the court to be in default for failure to plead. Were we even to accept defendants' contention that the first caveat does not apply by virtue of the severance of the instant case from the trial call at the moment the dismissal order was entered, we would, nonetheless, be compelled to adhere to the same conclusion.

As to defendant, Anna Sobol, the answer is inescapable. Put quite simply, she had, at no time prior to proceedings of November 16, 1965, endeavored to file her appearance either pro se or by counsel. The only matters appearing in the common law record in regard to either attorney Fusek or Cody, save the motion after judgment, concern themselves with representation of Daniel Sobol. Manifestly, neither Anna Sobol, and hence her attorney (if she had...