Williams v. Pearson
| Decision Date | 22 September 1961 |
| Docket Number | No. 36418,36418 |
| Citation | 23 Ill.2d 357,177 N.E.2d 856 |
| Parties | Harold WILLIAMS et al., Appellants, v. Katherine PEARSON et al., Appellees. |
| Court | Illinois Supreme Court |
Arthur S. Gomberg, Chicago (Samuel Nineberg, Chicago, of counsel), for appellants.
Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan (Gerald C. Snyder, Waukegan, of counsel), for appellees.
This case involves a question of practice. The action was brought in the circuit court of Lake County to recover damages for personal injuries. After the case was at issue it was duly set for trial on February 18, 1959. On that date the defendants were present with their witnesses, but the plaintiffs failed to appear. When the case was reached a jury was impanelled and defendants presented their proof, at the conclusion of which a directed verdict was returned for defendants. Judgment on the verdict was entered the same day.
On June 23, 1959, more than four months after the judgment was entered, plaintiffs filed a verified petition presumably under section 72 of the Civil Practice Act (Ill.Rev.Stat.1959, chap. 110, par. 72), to vacate and set aside the judgment, stating that they did not appear because they assumed the case would be continued or reset for trial to another date, and that it was not until June 10 that they discovered the case had been tried on February 18. The petition made the bare assertion that the plaintiffs and their attorneys had been diligent in this cause.
The parties and the Appellate Court have proceeded, apparently, on the assumption that the issue is simply whether the court erred in proceeding to trial instead of dismissing the suit. But the inquiry in this proceeding is not merely the propriety of that determination as a matter of law. The present proceeding is brought more than 30 days after entry of the February 18 judgment. It is not an appeal from the judgment of February 18, or a substitute for such an appeal, but an independent action in which the petitioner must allege and prove a right to the relief sought. The record contains no motion whatever for a dismissal under section 52. Plaintiffs' petition seeks not a dismissal but 'an order vacating and setting aside the verdict and judgment of February 18, 1959, and reinstating the above entitled cause and setting the same for trial.' Section 52 could be relevant only if the question were reached whether the trial court erred in entering the original judgment. The present case is not an appeal from that judgment, however, but from the order denying the petition to vacate it. Whether the court erred in denying the petition depends upon whether proper grounds are present for the post-judgment relief sought here.
It is plain in the case at bar that no grounds have been shown to entitle the plaintiffs to relief, and that the circuit and Appellate courts reached the correct result. All the petition alleges is that the attorney in charge of plaintiffs' case 'assumed that the case would be continued or reset for trial to another date' and that the plaintiffs relied on...
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...of court rules or orders. Shapira, 199 Ill.App.3d at 483, 145 Ill.Dec. at 585, 557 N.E.2d at 354; see also Williams v. Pearson (1961), 23 Ill.2d 357, 359, 177 N.E.2d 856, 857. Plaintiffs further contend that they exhibited diligence in attempting to vacate the July 30, 1987, order dismissin......
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Newman v. Newman
...72 petition commenced a new suit, vesting the Circuit Court with jurisdiction to consider the merits of the action. Williams v. Pearson, 23 Ill.2d 357, 177 N.E.2d 856 (1961); Brockmeyer v. Duncan, 18 Ill.2d 502, 165 N.E.2d 294 Defendant, an incompetent at the time, appeared by her next frie......
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Diacou v. Palos State Bank
...that the petition in question had been properly denied. See also Fennema v. Vander Aa, 42 Ill.2d 309, 247 N.E.2d 409; Williams v. Pearson, 23 Ill.2d 357, 177 N.E.2d 856. In the present case, the plaintiffs' original petition alleged that the plaintiffs' failure to appear was due in part to ......
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Hubbard v. Hubbard
...does not appear on the day set for trial, it is not error for the court to proceed with trial on the merits. Williams v. Pearson (1961), 23 Ill.2d 357, 177 N.E.2d 856. Based on the surrounding circumstances and the orders already entered, it was reasonable for the trial court to find that t......