{ "id": 2536840, "name": "Esther Culver, Plaintiff-Appellant, v. Perry Allerton, Defendant-Appellee", "name_abbreviation": "Culver v. Allerton", "decision_date": "1971-05-06", "docket_number": "No. 70-118", "first_page": "137", "last_page": "142", "citations": [ { "type": "official", "cite": "132 Ill. App. 2d 137" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "11 Ill.2d 525", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2785921 ], "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0525-01" ] }, { "cite": "119 Ill.App.2d 366", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1584495 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/119/0366-01" ] }, { "cite": "44 Ill.App.2d 421", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5242959 ], "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/44/0421-01" ] }, { "cite": "95 Ill.App.2d 251", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2539366 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-2d/95/0251-01" ] }, { "cite": "364 Ill. 161", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587423 ], "pin_cites": [ { "page": "162, 163" } ], "opinion_index": 0, "case_paths": [ "/ill/364/0161-01" ] }, { "cite": "29 Ill.App.2d 45", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5220260 ], "pin_cites": [ { "page": "49, 50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0045-01" ] }, { "cite": "124 Ill.App.2d 401", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1578934 ], "weight": 2, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/124/0401-01" ] }, { "cite": "61 Ill.App.2d 404", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5300679 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/61/0404-01" ] }, { "cite": "34 Ill.2d 358", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2878761 ], "year": 1965, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0358-01" ] } ], "analysis": { "cardinality": 522, "char_count": 10437, "ocr_confidence": 0.732, "pagerank": { "raw": 8.986455223530553e-08, "percentile": 0.5027542146279571 }, "sha256": "69472cb515a668e0e6c7d21faf429f7abab33779b0dc6798e6a8811c467382ab", "simhash": "1:b9e644c3624fdc1a", "word_count": 1763 }, "last_updated": "2023-07-14T15:45:25.950864+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Esther Culver, Plaintiff-Appellant, v. Perry Allerton, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nOn March 23rd, 1970, plaintiff filed a motion to vacate an order which had been entered on June 5th, 1967, dismissing her complaint for want of prosecution. The trial court denied the motion with a finding that it had no jurisdiction to hear it. Essentially, plaintiff\u2019s appeal urges that the dismissal order was entered without notice, and was therefore void and subject to attack at any time.\nThe complaint, claiming damages for personal injury, was filed on May 8th, 1962. Thereafter, an answer, an amended complaint, and various motions directed toward the amended complaint were filed. The pending motions were taken under advisement by the court on June 22nd, 1965.\nOn April 12th, 1967, plaintiff\u2019s counsel received notice of a general call of the docket to be held on April 28th, 1967. The notice advised that \u201cAll cases in which positive action has not been taken and no attempt has been made for trial or final disposition of same for at least one year immediately preceding said call may be dismissed under Administrative Rule Four (4) of this Circuit * * An order was entered on April 28th, 1967, which recited: That a just reason has been offered why the above captioned cause should not be dismissed from the general docket for lack of prosecution\u201d, and ordered \u201cThat plaintiff has one week to file a certificate of readiness\u201d.\nThe docket next shows the order dated June 5th, 1967, which recited that it was being entered pursuant to the general call of which all attorneys of record received notice, and ordered the dismissal after a finding: \u201cThat no action has taken place since the order of April 28th, 1967, continuing cause to May 5, 1967 * *\nThe trial court, in its view that it had no jurisdiction, did not consider the statements in plaintiff\u2019s motion and affidavit to vacate the June 5th, 1967 order. For the purpose of this appeal, we will consider the allegations which bear on the issue whether the court entered a dismissal order which was void and consequently subject to attack after the running of the two year limitations period set forth in Section 72 of the Civil Practice Act. In the affidavit of plaintiff\u2019s counsel, it is admitted that plaintiff had prior notice of the general call of the docket set for April 28th, 1967, but it is further stated,\n\u201c6. On April 28, 1967, the Court had entered an order (Exhibit S) allowing one week for a Certificate of Readiness for Trial to be filed, but affiant received no notice of this. The Court also continued the matter to June 5, 1967, but affiant received no notice of this either from the Court or the McWethy firm.\n7. On June 5, 1967, the Culver case was dismissed by Judge John S. Petersen, since no action had been taken. (See Exhibit T) Affiant had never been notified that action should have been taken. Affiant received no notice from the Court (a review of the court file indicates no post card or other notice was sent) or the McWethy firm that the case had been dismissed.\u201d\nPlaintiff also stated that after receiving notice of the general docket call, her attorney called the office of defendant\u2019s attorney and was advised that defendant\u2019s attorney would answer ready for plaintiff and either file a certificate of readiness for trial or send the forms, and that in any event the case would be reached for trial in six months or a year.\nPlaintiff concedes that the issue of due diligence in failing to discover the order of dismissal is irrelevant; but essentally argues that the order of June 5, 1967, is void because it was rendered without notice of the hearing and the plaintiff was not thereafter informed.\nIt is clear that a void order may be attacked at any time. See Ill. Rev. Stat. 1967, ch. 110, par. 72(7); Fox v. Dept. of Revenue (1966), 34 Ill.2d 358, 361; Antczak v. Antczak (1965), 61 Ill.App.2d 404, 410; Weiner v. Checker Taxi Co., Inc. (1970), 124 Ill.App.2d 401, 404.\nHowever, the failure of the clerk to send notice of the order of dismissal pursuant to par. 50.1 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 50.1), does not prove that the order is void, as the provision explicitly states that, \u201cthe failure of the clerk to give the notice does not impair the force, the validity or effect of the order\u201d. (Such failure may be relevant to the issue of a party\u2019s due diligence under Section 72. See, e.g., Maierhofer v. Gerhardt (1961), 29 Ill.App.2d 45, 49, 50).\nPlaintiff relies principally upon Weiner v. Checker Taxi Co., Inc., 124 Ill.App.2d 401, supra, to support the further argument that the dismissal order was entered without notice. In Weiner the court found that the order of dismissal was obtained fraudulently and was therefore void. There, the notice of the hearing, which resulted in the dismissal, was sent to the plaintiff\u2019s Wisconsin attorney at the address of a Chicago attorney known to have previously withdrawn from the case with the only conclusion possible from the facts being that defendant did not intend to give notice to plaintiff of a motion to dismiss and it was not possible for plaintiff\u2019s attorney to receive the notice. Here, plaintiff admittedly had notice of the dismissal call. The allegation that the opposing attorney stated \u201che would answer ready for affiant and would then either file a Certificate of Readiness or send affiant the forms\u201d is insufficient to show that any fraud was practiced upon the court or counsel at the time when plaintiff\u2019s counsel was obligated to attend the dismissal call inasmuch as the case was not then dismissed but was continued for the filing of the Certificate of Readiness. The recital of a subsequent call to a secretary in the office of defendant\u2019s counsel, and her purported statement, \u201cEverything was Okay\u201d and \u201cThat it had been taken care of\u201d would certainly be relevant to an issue of plaintiff\u2019s due diligence in following the progress of the case, but does not amount to stating fraud which would vitiate the judgment of dismissal. The plaintiff was before the court on due notice of the call of the docket on April 28th, 1967 for the purpose of dismissing cases for want of prosecution; she thereupon was charged with notice of all subsequent proceedings taken in accordance with the notice and in furtherance of the purpose of Administrative Rule Four to clear the docket of cases in which there appeared a want of prosecution. (See Dyer v. Ind. Com. (1936), 364 Ill. 161, 162, 163.) The June 5,1967, order was a continuation of the earlier proceedings and cannot therefore be characterized as a void order entered without notice. The order was presumptively valid and the allegations in plaintiff\u2019s motion to vacate, as admitted, are insufficient to prove otherwise. Urso v. Reynolds Metals Co. (1968), 95 Ill.App.2d 251; Antczak v. Antczak, 61 Ill.App.2d 404, supra. See also Pettigrove v. Parro Const. Corp. (1963), 44 Ill.App.2d 421, 423.\nPlaintiff, in her reply brief, seeks to distinguish Urso, arguing that there is a \u2018break in the chain of notice\u201d because the April 28th order continued the cause to May 5th and no new notice was sent to plaintiff for the proceedings on June 5th, 1967. Her motion, however, concedes that, \u201cThe court also continued the matter to June 5th, 1967\u201d. (Par. 6, supra)\nPlaintiff has also argued that the conduct of defendant\u2019s counsel in representing that they would attend the call and apprise plaintiff\u2019s counsel of the proceedings, and then faffing to advise plaintiff of the contemplated action required by the court and the further hearings, together with the alleged fact that the case was thereafter carried as a pending case by the court, estops the court and counsel from raising the defense of lack of jurisdiction. The authority cited for this proposition is Stevens v. City of Chicago (1970), 119 Ill.App.2d 366. In Stevens the court found that there was active participation of the parties without objection subsequent to the dismissal and further proceedings inconsistent with the prior order of dismissal, which amounted to a waiver of the defense of lack of jurisdiction. Here the defendant at no time appeared in court other than by way of a special limited appearance subsequent to the dismissal order. All of the subsequent activity here involved action of the plaintiff and responses of the clerk. Plaintiff is not aided under the circumstances of this case by its reliance on alleged representations or acts of the clerk of the court. See Bernier v. Schaefer (1957), 11 Ill.2d 525, 530.\nIt is unfortunate that plaintiff cannot now have a trial of the case on its merits. A proper check of the court file, or in fact a check of plaintiff\u2019s own files, at any time within two years from the dismissal order, however, would have allowed plaintiff sufficient time to have taken remedial relief under Section 72, urging its excuses for lack of diligence. The \"telephone practice\u201d engaged in by plaintiffs counsel cannot, some 34 months later, affect the validity of the order of dismissal.\nWe, therefore, affirm.\nOrder affirmed.\nT. MORAN, P. J., and ABRAHAMSON, J., concur.\nWe thus view the remaining allegations of the motion irrelevant to the question whether the dismissal order is void. These allegations are addressed to equitable considerations under Section 72. Included are allegations that plaintiff\u2019s counsel contacted defendant\u2019s office by telephone a few days after the call and was advised by a secretary in defendant\u2019s office that \u201ceverything had been taken care of and if any problem arose they would let him know\u201d. Other allegations referred to various calls to the Kane County clerk\u2019s office during 1967, 1968 and 1969, and correspondence with the clerk\u2019s office which first indicated that the case had not been assigned for trial and later indicated that plaintiff was to file a certificate of readiness, which plaintiff did file in 1969. It was further alleged that the clerk\u2019s calendar showed the case listed for trial in 1970. (After the court\u2019s refusal to vacate its dismissal order, plaintiff filed a Section 72 petition which was denied for the reason that some 34 months had run since the time of the dismissal order. No appeal was taken from this denial.)", "type": "majority", "author": "Mr. JUSTICE SEIDENFELD" } ], "attorneys": [ "Albert F. Hofeld, of Chicago, for appellant.", "Alschuler, Putnam, McWethy, Weiss & Weiler, of Aurora, for appellee." ], "corrections": "", "head_matter": "Esther Culver, Plaintiff-Appellant, v. Perry Allerton, Defendant-Appellee.\n(No. 70-118;\nSecond District\nMay 6, 1971.\nAlbert F. Hofeld, of Chicago, for appellant.\nAlschuler, Putnam, McWethy, Weiss & Weiler, of Aurora, for appellee." }, "file_name": "0137-01", "first_page_order": 161, "last_page_order": 166 }