{ "id": 2655457, "name": "George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Jerry Morris and Jack David, Defendants-Appellees", "name_abbreviation": "George F. Mueller & Sons, Inc. v. Morris", "decision_date": "1970-09-09", "docket_number": "Gen. No. 53,906", "first_page": "454", "last_page": "459", "citations": [ { "type": "official", "cite": "128 Ill. App. 2d 454" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "190 NE2d 604", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill App2d 346", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2452772 ], "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0346-01" ] }, { "cite": "169 NE2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "832" } ], "opinion_index": 0 }, { "cite": "27 Ill App2d 347", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5787764 ], "pin_cites": [ { "page": "354-355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/27/0347-01" ] }, { "cite": "230 NE2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill App 2d 257", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2549981 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0257-01" ] }, { "cite": "263 Ill App 657", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3260344, 3256969, 3260465, 3256423 ], "opinion_index": 0, "case_paths": [ "/ill-app/263/0657-02", "/ill-app/263/0657-03", "/ill-app/263/0657-04", "/ill-app/263/0657-01" ] }, { "cite": "106 NE2d 350", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 482, "char_count": 8910, "ocr_confidence": 0.595, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.2960857949633357 }, "sha256": "452e7afb33daa10c6ce9fce95638e80debe431400b01e749eb3aa6415cadf766", "simhash": "1:dfc0948ff0f28cf6", "word_count": 1493 }, "last_updated": "2023-07-14T20:42:57.063857+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Jerry Morris and Jack David, Defendants-Appellees." ], "opinions": [ { "text": "MR. JUSTICE DRUCKER\ndelivered the opinion of the court.\nPlaintiff appeals from an order vacating a default judgment entered against defendants and setting the case for trial.\nOn October 28,1967, plaintiff filed a complaint alleging that defendants breached a contract which granted plaintiff an exclusive concession for a cigarette vending machine and claiming loss of profits in the sum of $5,563.12. In their answer defendants admitted that they had entered into a contract with plaintiff but alleged that the contract lacked mutuality and consideration and was no longer in effect since it had expired.\nOn April 15,1968, a portion of defendants\u2019 answer was stricken by agreement, and defendants were given thirty days to answer or plead over. The record does not indicate which portions of the answer were stricken and which remained in effect.\nOn October 1,1968, plaintiff filed a notice of motion in which it requested that a default judgment be taken against defendants \u201cfor want of answer.\u201d The hearing on plaintiff\u2019s motion was transferred from Room 1307 to Room 1310 instanter. In Room 1310 a default judgment for $5,563.12 and costs was entered in favor of plaintiff.\nOn December 13, 1968, defendants filed a motion to vacate the default judgment, and a hearing was to be held thereon on December 23. However, due to the illness of defendants\u2019 counsel the motion was not heard.\nOn February 4, 1969, defendants filed a petition in support of their motion to vacate. The petition alleged that defendants had a meritorious defense to plaintiff\u2019s cause of action \u201cin that there was a failure of consideration, rescission, lack of mutuality and a repayment of the supporting loan upon which the contract was based and acceptance by the plaintiff of the loan repayment.\u201d The petition also alleged that defendants had no notice of any-hearing on October 1,1968, the date on which the default judgment was entered; that plaintiff\u2019s counsel had set a deposition to be taken on October 11, 1968, at 1:00 p. m.; that defendants and their attorney were present; that plaintiff\u2019s counsel left a message that the deposition would not proceed; that plaintiff\u2019s counsel never informed defendants that a default judgment had previously been entered; and that defendants\u2019 attorney had been diligent. Plaintiff filed a motion to strike the petition, thus questioning only the legal sufficiency of the facts alleged in the petition. Hawthorne Paper Sales Co. v. Kolf, supra.\nAt the hearing on defendants\u2019 petition, which was considered as a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, \u00a7 72) defendants\u2019 counsel stated that he never received notice of plaintiff\u2019s motion for default judgment; that defendants were not informed of the default judgment at the deposition scheduled for October 11, 1968; and that defendants first learned of the default in December 1968 when they were served with a citation to discover assets.\nPlaintiff\u2019s attorney stated that he personally took the notice of motion for default to the office of defendants\u2019 counsel and that one of the girls at the desk initialed it. The notice was initialed \u201cP.K.\u201d or \u201cR.K.\u201d and signed Milton J. \u201cColeman\u201d or \u201cKoleman.\u201d The court noted that this was an incorrect spelling of the name of defendants\u2019 attorney which was Kolman. Defendants\u2019 counsel then told the court that none of the secretaries in the office had the initials \u201cP.K.\u201d or \u201cR.K.\u201d\nPlaintiff\u2019s attorney also told the court that he was not informed that defendants were present for the October 11, 1968, deposition. He introduced a copy of a letter which he allegedly sent to Mr. Kolman on October 8, 1968. The letter read:\n\u201cOctober 8, 1968\n\u201cMr, Milton J. Kolman \u201cAttorney at Law \u201c38 N. La Salle Street \u201cChicago, Illinois\n\u201cDear Sir:\n\u201cI shall not be able to proceed with the deposition of Jerry Norris and Jack David on October 11, 1968 pursuant to the notice heretofore served upon you.\nVery truly yours,\u201d\nThe letter made no mention of the default judgment previously entered on October 1,1968.\nBased upon these circumstances, the court found that there was some question as to whether or not defendants\u2019 counsel had notice of the default hearing on October 1; that defendants\u2019 answer was on file although an unspecified portion of it was stricken by agreement; that plaintiff\u2019s notice of motion for default judgment stated that the hearing was to be held at 9:30 a. m. in Room 1307, when in fact judgment was entered at 1:00 p. m. in Room 1310; that plaintiff\u2019s correspondence of October 8 made no mention of the default judgment; and that plaintiff waited for more than thirty days before serving an execution or citation. The court vacated the October 1, 1968, default judgment and set the case for trial. It is from this order which plaintiff appeals.\nIn Ellman v. De Ruiter, 412 El 285, 293, 106 NE2d 350, the court, in discussing the pattern of conduct followed by plaintiffs\u2019 attorney after default judgments were entered against defendant, stated:\nWhile there was no duty on the attorney to notify defendant of the default judgments, fair dealing would require that he inform defendant of the defaults when the question arose instead of pursuing a course calculated to keep the defendant in ignorance until the time he could make a direct attack on the judgments had expired. Somewhat similar conduct was condemned in McKiernan v. Taylor & Lynch Cartage Co., 263 Ill App 657. . . . Considering the record in its entirety, we agree with the Appellate Court that such conduct cannot be condoned and that defendant is entitled to relief. To prevent a failure of justice and a further suit in equity, we conclude, for the reasons previously set forth, that it is within the spirit of the Civil Practice Act, and within the scope of the function of the motion which has replaced the writ of error coram nobis, that defendant be given summary relief in this proceeding.\nIn Gary Acceptance Corp. v. Napilillo, 86 Ill App 2d 257, 230 NE2d 73, the court also referred to plaintiff\u2019s counsel\u2019s conduct after he had obtained a default judgment. The court stated at page 263:\nA further factor to be taken into consideration is the plaintiff\u2019s failure to levy an execution until after the thirty-day period had expired. We have had occasion to express our views on this common strategy. Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 354-355, 169 NE2d 829, 832. In that case we said (pp 354-355):\n\u201cWhile no duty is imposed upon a party or counsel to sue out an execution promptly in order to inform a defendant of a default within the thirty-day period, yet failure to do so is a circumstance which casts a cloud upon the entire proceeding. [Citation omitted.] On a petition to vacate, the court may properly take it into account in appraising the worth of the defense to the petition.\u201d\nIn the instant case the record supports the trial judge\u2019s findings. Defendants\u2019 petition alleged that they appeared for a deposition on October 11, ten days after the default judgment had been entered (a fact which, in itself, supports their allegation that they had not received notice of the motion for default judgment), and were advised that plaintiff\u2019s counsel had left a message that the deposition would not proceed. Plaintiff\u2019s counsel told the court that he had sent a letter, which defendants claimed was not received, which stated that he \u201cshall not be able to proceed\u201d with the deposition. This was allegedly mailed by him seven days after the default judgment. Under either set of facts there was a clear inference that the cause was still pending and that plaintiff\u2019s counsel for reasons best known to himself was not able to proceed. We do not consider this conduct \u201cfair dealing\u201d as enunciated in Ellman, supra.\nThe order vacating the default judgment of October 1, 1968, and setting the case for trial is affirmed.\nAffirmed.\nSTAMOS, P. J. and ENGLISH, J., concur.\nSince only a part of the answer was stricken, defendants were not in default \u201cfor want of answer.\u201d Hawthorne Paper Sales Co. v. Kolf, 41 Ill App2d 346, 349, 190 NE2d 604.\nIn oral argument in this court plaintiff\u2019s counsel stated that when Mr. Schostok, who appeared for defendants in the trial court hearing, told the trial court that he did not have a secretary by the name of P.K. or R.K., he was referring to his own office and not to Mr. Kolman\u2019s office where the notice was allegedly served. This argument was not advanced to the trial judge who found that \u201ccounsel states that no one by that name [referring to the initials] is in their office.\u201d We are, therefore, precluded from considering this argument.", "type": "majority", "author": "MR. JUSTICE DRUCKER" } ], "attorneys": [ "J. Edward Jones, of Blue Island, for appellant.", "Milton J. Kolman, bf Chicago, for appellees." ], "corrections": "", "head_matter": "George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Jerry Morris and Jack David, Defendants-Appellees.\nGen. No. 53,906.\nFirst District, Fourth Division.\nSeptember 9, 1970.\nJ. Edward Jones, of Blue Island, for appellant.\nMilton J. Kolman, bf Chicago, for appellees." }, "file_name": "0454-01", "first_page_order": 460, "last_page_order": 465 }