Vosnos v. Wenzel

• Decision Date: 18 November 1963
• Docket Number: Gen. No. 49015
• Citation: 194 N.E.2d 484,44 Ill.App.2d 192
• Parties: John D. VOSNOS, Plaintiff-Appellee, v. George WENZEL and Elizabeth Wenzel, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 484

194 N.E.2d 484

44 Ill.App.2d 192

John D. VOSNOS, Plaintiff-Appellee, v. George WENZEL and Elizabeth Wenzel, Defendants-Appellants.

Gen. No. 49015.

Appellate Court of Illinois, First District, First Division.

Nov. 18, 1963.

Rehearing Denied Dec. 3, 1963.

William C. Wines, Chicago, for plaintiff-appellee.

Albert H. Werner, Robert A. Sprecher, Chicago, for defendants-appellants.

BURMAN, Justice.

This is an appeal from an order entered in the Municipal Court of Chicago denying the petition of defendants, filed under Section 72 of the Practice Act, Ill.Rev.Stat.1959, c. 110, § 72, to vacate a default judgment and from the dismissal of their counterclaim.

Plaintiff's statement of claim alleged substantially that George Wenzel and Elizabeth Wenzel, his wife, employed him as their attorney to represent the defendant, George Wenzel, who was charged with the crime of statutory rape and who agreed to pay him the sum of $5,000.00 for his services; that plaintiff represented Wenzel and succeeded in reducing the charge to that of contributing to the delinquency of a minor and secured probation for the defendant; that defendants paid the plaintiff the sum of $2,500.00 on June 30, 1959, and an additional $1,000.00 in July, 1959, but refused to pay the balance of $1,500.00, although often requested to do so by plaintiff.

The answer of defendants admitted that George Wenzel employed the plaintiff to defend him, but denied that his wife was a party to the employment. The defendant averred that plaintiff promise he would obtain defendant's discharge from the charge of statutory rape and therefore was not entitled to more than the $2,500.00 originally paid him. The answer further alleged that the defendant, Elizabeth Wenzel, paid plaintiff the additional $1,000.00 because of threats and while under duress. In the counterclaim filed by defendant, Elizabeth Wenzel, she alleged that the plaintiff threatened to have the probation order vacated and to have George Wenzel sent to the penitentiary; that because of these threats she gave plaintiff the sum of $1,000.00 of her own money, which she says she was not obligated to pay, and therefore she sued for the return of this payment. The plaintiff filed a reply and an answer to the counterclaim and thereafter filed an amended reply. On June 27, 1960, the case was tried ex parte to a jury verdict for the plaintiff against both defendants on plaintiff's complaint and a further verdict was rendered finding the plaintiff not guilty on the counterclaim. Judgment was entered on the verdict for $1,500.00 plus costs on the same day and the counterclaim was dismissed.

On September 29, 1960, Albert H. Werner, attorney for the defendants filed his verified petition on behalf of defendants to vacate the judgment. Briefly, the petition alleged that when the petitioner answered the trial call on June 7, 1960, in room 1116 of the court house he was advised that the file had been sent to the assignment clerk in room 917 for reassignment; that petitioner went there and was told by the assignment clerk that the case was assigned for trial in room 1112 on September 27, 1960; that the petitioner appeared to answer the trial call in room 1112 on that date, but learned for the first time an ex parte judgment had been entered against his clients in room 913 on June 27th, and wherefore the petitioner prayed that the ex parte judgment be vacated so that defendants may have their day in court. Plaintiff answered and in substance stated that the case was duly assigned for trial in room 913 on June 27, 1960; that plaintiff by a letter mailed on June 8, 1960, addressed to the office of Albert H. Werner, advised him that the case had been set for trial on June 27 in room 913; that on that date at the direction of Judge Hermes the attorney for plaintiff phoned the office of defendants' attorney on two occasions and when informed each time that Mr. Werner was out, left a message that the case was called for trial and Mr. Werner should come to court at once and thereafter when no one appeared for defendants, the case was tried to a jury ex parte.

Albert H. Werner, in a verified reply, answered that he was told by the court clerk that no jury cases were being assigned for trial before the close of the term and that due to a misunderstanding of the case number the case was mistakenly assigned to room 913; he denied that he had ever received a letter as alleged and denied that the phone calls were ever made to his office as alleged; he stated that there is only one other lawyer in his office and that neither he nor his secretary ever received the phone calls and to his answer there was attached a verified affidavit of his secretary corroborating these statements. On January 6, 1961, the court overruled the motion to vacate the ex parte judgment and leave was given the defendants to file an amended petition in 30 days and plaintiff's answer heretofore filed to stand.

The above order was then appealed to this court which appeal was dismissed on the...