{ "id": 1584497, "name": "Mary Carlstedt, Individually, and as Administratrix of the Estate of Raymond Carlstedt, Deceased, Plaintiff-Appellee, v. Charles L. Kaufmann, Eugene B. Kaufmann, Lester M. Kaufmann and The Kaufmann Building Corporation, an Illinois Corporation, Defendants-Appellants", "name_abbreviation": "Carlstedt v. Kaufmann", "decision_date": "1970-01-07", "docket_number": "Gen. No. 52,247", "first_page": "322", "last_page": "328", "citations": [ { "type": "official", "cite": "119 Ill. App. 2d 322" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "106 NE2d 350", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "412 Ill 285", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664013 ], "opinion_index": 0, "case_paths": [ "/ill/412/0285-01" ] }, { "cite": "251 NE2d 390", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "112 Ill App2d 129", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590864 ], "weight": 2, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0129-01" ] }, { "cite": "172 NE2d 201", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill App2d 45", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5220260 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0045-01" ] }, { "cite": "196 NE2d 728", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill App2d 2", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5265251, 5266086 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/46/0002-01", "/ill-app-2d/46/0002-02" ] }, { "cite": "247 NE2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848809 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0309-01" ] }, { "cite": "236 NE2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill2d 464", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2858779 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0464-01" ] }, { "cite": "218 NE2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill App2d 49", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2582652 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/73/0049-01" ] }, { "cite": "169 NE2d 747", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill2d 526", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737615 ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0526-01" ] } ], "analysis": { "cardinality": 499, "char_count": 9851, "ocr_confidence": 0.642, "pagerank": { "raw": 1.7360437463846316e-07, "percentile": 0.7062871233033278 }, "sha256": "2e85105b34ba89185fd8a93e0f72942375750d946e479986469dea51c2e44f18", "simhash": "1:94badbeff0b3b081", "word_count": 1618 }, "last_updated": "2023-07-14T18:00:25.222000+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mary Carlstedt, Individually, and as Administratrix of the Estate of Raymond Carlstedt, Deceased, Plaintiff-Appellee, v. Charles L. Kaufmann, Eugene B. Kaufmann, Lester M. Kaufmann and The Kaufmann Building Corporation, an Illinois Corporation, Defendants-Appellants." ], "opinions": [ { "text": "MR. JUSTICE LEIGHTON\ndelivered the opinion of the court.\nThis is an appeal from an order that denied defendants\u2019 motion to strike and granted plaintiff\u2019s petition to vacate a dismissal for want of prosecution. Although defendants have fragmentized its presentation, the issue is whether plaintiff\u2019s petition satisfied the requirements of section 72 of the Civil Practice Act, Ill Rev Stats 1965, c 110, \u00a7 72.\nThe petition, sworn to and supported by exhibits, alleged that on August 22,1961, plaintiff filed suit against defendants to recover for the wrongful death of her husband, Raymond Carlstedt. Defendants appeared and answered the complaint. Discovery proceedings and pretrial motions followed. On March 31, 1965, the case was called for pretrial conference. Plaintiff alleged there was an agreement between counsel that the pretrial be continued to April 14, 1965. On April 9, 1965, defendants served plaintiff with a notice that on April 14, 1965, they were going before a motion judge in the circuit court and ask leave to file a motion for summary judgment. Plaintiff\u2019s counsel called counsel for defendants and discussed hearing of the motion and the possibility of settlement. \u201c [M] r. Farrell (defendant\u2019s counsel) thereupon informed . . . Charles Pressman (plaintiff\u2019s counsel), . . . that there was no possibility of settlement. It was therefore agreed that plaintiff\u2019s counsel should thereupon inform Judge Wham (the pretrial judge) that there was no possibility of settlement at least until the Motion for Summary Judgment was disposed of, and that in view of these circumstances, it would be best to place the case on the trial call.\u201d\nOn April 14, 1965, and because of the agreement, only plaintiff\u2019s counsel appeared in the courtroom of the pretrial judge. He spoke with the clerk, told him of the agreement and asked that the judge be advised of the parties\u2019 desire that the cause be placed on the trial calendar. The clerk told plaintiff\u2019s counsel that if the pretrial judge wanted counsel to be present, he, the clerk, would so advise by telephone. No call was received from the clerk; so plaintiff\u2019s counsel assumed the case was placed on the trial call. However, on April 19, 1965, the cause was dismissed for want of prosecution. Plaintiff alleged that \u201cNo postcard informing plaintiff or her counsel of the dismissal order was ever sent by the clerk of the court, nor did he ever inform counsel for the plaintiff that disposition was other than as stipulated to by the parties.\u201d\nPlaintiff further alleged that on April 15, 1965, the day after the cause appeared for pretrial, the parties were before the motion judge in accordance with their agreement that a dismissal order was not to be entered. The motion for summary judgment was filed and assigned for hearing. On April 23, four days after the cause was dismissed for want of prosecution, the parties proceeded with further discovery. Letters were exchanged between counsel concerning dates for depositions. Hearing on the motion was continued to May 29, 1965, then to July 12, 1965; and finally by agreement of the parties, continued generally. The petition alleged that on December 6, 1966, when the court file was checked by plaintiff\u2019s counsel, the dismissal for want of prosecution of April 19, 1965, was discovered. The petition under section 72 was filed December 20,1966.\nDefendants first questioned the jurisdiction of the trial court by a motion to vacate an order of December 8 which allowed plaintiff to file her section 72 petition on or before December 20, 1966. The motion was denied. On January 4, 1967, defendants filed a special and limited appearance to object to the jurisdiction of the court over them and to request a stay of plaintiff\u2019s petition. Hearing was set for February 27, 1967. On January 30, defendants filed a motion to strike and dismiss plaintiff\u2019s petition.\nIt is an elementary rule of pleading that defendants\u2019 motion to strike admitted as true all well-pleaded facts in plaintiff\u2019s petition. Pierce v. Carpentier, 20 Ill2d 526, 169 NE2d 747; Washington Mfg. Co. v. American Uniform Rental Co., 73 Ill App2d 49, 218 NE2d 499. The question, therefore, is whether these well-pleaded facts were sufficient to justify vacatur of the dismissal. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719. The petition was the filing of a new suit; and it was necessary, as in any civil case, for petitioner to allege a cause of action. The burden was on petitioner to show by adequate allegations that she was entitled to the relief requested. Fennema v. Vander Aa, 42 Ill2d 309, 247 NE2d 409.\nDefendants contend that plaintiff did not allege facts which entitled her to vacation of the dismissal. However, there are three factual allegations in plaintiff\u2019s petition which, in our judgment, dispose of this contention: (1) on March 31, 1965, counsel agreed that the cause be placed on the trial call to await disposition of defendants\u2019 summary judgment motion; (2) plaintiff\u2019s counsel went to the clerk of the pretrial judge and requested the cause be returned to the trial calendar; and (3) the clerk did not send notice of the dismissal for want of prosecution. We observe that defendants by their motion not only admitted the truth of these allegations, but when counsel for plaintiff, in court and in the presence of defendants\u2019 counsel stated these facts, there was no denial. Defendants have never contradicted these allegations, either by oral assertion of their counsel, by affidavit, counteraffidavit, or answer.\nSection 50.1 of the Civil Practice Act, Ill Rev Stats 1965, c 110, \u00a7 50.1 provides that \u201c[t]he failure of the clerk to give the notice does not impair the force, validity or effect of the order.\u201d This section has a purpose not expressed in its terms. It is that each party who has appeared, or his attorney of record, be notified that an order of dismissal or default has been entered against him. It is to alert a party so that he can act within the time provided for by law and move to set aside a dismissal or default. Ill Rev Stats 1965, c 110, \u00a7 50(5). Its more obvious purpose is to alleviate the injustice which would result if a default or dismissal is entered without notice to a party who has appeared. Nagel v. Wagner, 46 Ill App2d 2, 196 NE2d 728. Fundamental fairness requires that notice of a default or a dismissal be given a party of record. Washington Mfg. Co. v. American Uniform Rental Co., supra. Reliance on statutory provisions is not culpability. Maierhofer v. Gerhardt, 29 Ill App2d 45, 172 NE2d 201.\nDefendants\u2019 contention that the trial court erred in overruling their motion to strike completely overlooks plaintiff\u2019s allegations that counsel agreed to have the case returned to the trial calendar and that neither party appear at the pretrial conference. The truth of these allegations is borne out by the fact that defendants\u2019 counsel never was in the pretrial court after March 31, 1965. An agreement between counsel for litigants is a very important fact. The thrust of plaintiff\u2019s allegations was that if this agreement was known by the pretrial judge, he would not have ordered the dismissal for want of prosecution. This is the classical ground for grant of a section 72 petition.\nRecently, in Smith v. Pappas, 112 Ill App2d 129, 251 NE2d 390, a section 72 petition was filed to vacate a dismissal for want of prosecution because plaintiff failed to answer defendants\u2019 interrogatories. The petition alleged that counsel agreed to answer each other\u2019s interrogatories and not appear at a scheduled hearing of defendant\u2019s motion to dismiss for failure to answer. The petition alleged that notwithstanding the agreement, counsel for defendant appeared and obtained an order of dismissal. The trial court granted the section 72 petition. We affirmed. We said, \u201cHere the fact asserted to exist which, if known to the. court, would have prevented rendition of the judgment, was an alleged agreement between counsel that neither would appear at the hearing on defendant\u2019s motion to dismiss and that each would answer the other\u2019s interrogatories. Allegations of fact in support of that ultimate fact, as well as diligence and lack of negligence on the part of plaintiffs-appellants are contained in the petition.\u201d 112 Ill App2d 129, at 133, 251 NE2d 390.\nWe assume that when the pretrial judge overruled defendants\u2019 motion to strike and vacated the dismissal, he saw the incongruity of one judge dismissing for want of prosecution a case pending before another judge of the same court on the motion of the party resisting the vaeature. Under these circumstances, denial of plaintiff\u2019s petition would have been an injustice. Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350. Judgment is affirmed.\nJudgment affirmed.\nSTAMOS, P. J. and DRUCKER, J., concur.\nThere is a dispute concerning the exact date on which the parties were before the motion judge. Plaintiff has moved for leave to make page 18 of the motion judge\u2019s minute book a part of the record on appeal. Defendants filed objections. We took the motion with the case. We deny the motion.\nIt is of no significance on what particular day defendants\u2019 motion for summary judgment was before the motion judge. It is significant that the motion for summary judgment filed by defendants was pending when the cause was dismissed for want of prosecution by a pretrial judge of the same court.", "type": "majority", "author": "MR. JUSTICE LEIGHTON" } ], "attorneys": [ "Andrew J. Farrell, of Chicago, for appellants.", "Charles Pressman, Pressman & Hartunian, of Chicago, for appellee." ], "corrections": "", "head_matter": "Mary Carlstedt, Individually, and as Administratrix of the Estate of Raymond Carlstedt, Deceased, Plaintiff-Appellee, v. Charles L. Kaufmann, Eugene B. Kaufmann, Lester M. Kaufmann and The Kaufmann Building Corporation, an Illinois Corporation, Defendants-Appellants.\nGen. No. 52,247.\nFirst District, Fourth Division.\nJanuary 7, 1970.\nAndrew J. Farrell, of Chicago, for appellants.\nCharles Pressman, Pressman & Hartunian, of Chicago, for appellee." }, "file_name": "0322-01", "first_page_order": 328, "last_page_order": 334 }