{
  "id": 2472494,
  "name": "Elmer A. Holmgren, Plaintiff-Appellee, v. Henry H. Newcom, Defendant-Appellant",
  "name_abbreviation": "Holmgren v. Newcom",
  "decision_date": "1971-05-06",
  "docket_number": "No. 54772",
  "first_page": "76",
  "last_page": "78",
  "citations": [
    {
      "type": "official",
      "cite": "133 Ill. App. 2d 76"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "184 N.E.2d 736",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "36 Ill.App.2d 447",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
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        5261490
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      "opinion_index": 0,
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        "/ill-app-2d/36/0447-01"
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    {
      "cite": "239 N.E.2d 850",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "40 Ill.2d 308",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2856663
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      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/40/0308-01"
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    {
      "cite": "335 Ill. 322",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5789512
      ],
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/ill/335/0322-01"
      ]
    }
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  "analysis": {
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    "word_count": 763
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  "last_updated": "2023-07-14T20:40:15.946523+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Elmer A. Holmgren, Plaintiff-Appellee, v. Henry H. Newcom, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nThis is an appeal from an order of the Circuit Court of Cook County denying defendant\u2019s Section 72 petition to vacate a default judgment against the defendant and in favor of the plaintiff.\nWe reverse.\nThe relevant facts are as follows: Plaintiff Holmgren filed his complaint on September 23, 1968, alleging that the defendant Newcom held a beneficial interest in a land trust both for himself and as nominee for plaintiff, and that consequently plaintiff was entitled to certain proceeds of the sale of this interest. Defendant filed a pro se appearance on October 14, 1968. A default judgment was entered against defendant on November 4, 1968, in the amount of $6,250 plus costs. According to defendant\u2019s verified petition, on that same day, defendant\u2019s attorney attempted to contact plaintiff\u2019s attorney to request an extension of time to file an answer to the complaint. He was unsuccessful in this attempt. On November 5 defendant\u2019s attorney contacted plaintiff\u2019s attorney, and they agreed to enter a stipulation to vacate the default judgment of November 4. They were to sign a written stipulation on December 6, but defendant\u2019s attorney called plaintiff\u2019s attorney on that day and informed him that he, defendant\u2019s attorney, had been removed from the case and that all materials were being forwarded to defendant\u2019s new lawyer. To this plaintiff\u2019s attorney replied, \u201cAll bets are off.\u201d\nAfter having no success with his next attorney, defendant rehired his original attorney who predicated a Section 72 petition to vacate upon the November 5 agreement. The Section 72 petition was filed April 11, 1969, and denied on June 12. A petition to reverse this order was denied on October 6, the judge below claiming that he lacked jurisdiction to vacate the November 4, 1968, judgment.\nWe must first ascertain who was bound by the terms of the November 5 agreement. An attorney for a party to an action has the authority to take all steps necessary to protect his client\u2019s rights, and he may enter into stipulations or agreements in connection with the conduct of the litigation which will be considered the agreements of the client. (4 I.L.P. Attorneys and Counselors \u00a7 57; American Car Co. v. Industrial Commission (1929), 335 Ill. 322, 16 7N.E. 80; People v. Whitfield (1968), 40 Ill.2d 308, 239 N.E.2d 850.) Such an agreement was entered into by counsel on November 5, and both parties litigant were bound by its terms.\nWhen defendant\u2019s attorney called plaintiff\u2019s attorney on December 6 and informed him that he had been dismissed from the case, plaintiff\u2019s attorney had actual notice that the previous relationship between defendant and his lawyer had been terminated. Thus, even had defendant\u2019s attorney acquiesed to the attempt to terminate the agreement, his actions were no longer imputable to defendant, and thus could not possibly be construed as the actions of defendant.\nIt is argued by plaintiff that the phone call of December 6 constituted a rescission by mutual assent. We cannot accept this argument. There is no showing that defendant\u2019s dismissed attorney assented to the offer to rescind; but even if he did assent, the rescission would not be operative in that he had no authority to accept that offer at the time it was made. The basis of plaintiff\u2019s position seems to be that the November 5 agreement bound only the attorneys who made it, and created rights only in them. We must reject this reasoning for, as we stated above, attorneys bind their clients when entering into stipulations and agreements pertaining to litigation when such stipulations and agreements are within the scope of their authority.\nBecause the record failed to disclose any other grounds for considering the agreement terminated as between the parties, we must conclude that the agreement to vacate the default judgment was still operative when defendant filed his petition to vacate on April 11.\nA court may vacate or modify its judgment after it has otherwise lost jurisdiction through the passage of time when all the parties to a suit consent to it. (Roin v. Checker Taxi Co. (1962), 36 Ill.App.2d 447, 184 N.E.2d 736.) A stipulation to vacate is such a consent, and the judgment should be vacated.\nJudgment reversed and cause remanded with direction.\nMcNAMARA, P. J\u201e and DEMPSEY, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "Anixter, Delaney, Bilandic & Pigott, of Chicago, (Michael A. Bilandic and Robert A. Sprecher, of counsel,) for appellant.",
      "Lendol D. Snow and David G. Mountcastle, both of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Elmer A. Holmgren, Plaintiff-Appellee, v. Henry H. Newcom, Defendant-Appellant.\n(No. 54772;\nFirst District\nMay 6, 1971.\nAnixter, Delaney, Bilandic & Pigott, of Chicago, (Michael A. Bilandic and Robert A. Sprecher, of counsel,) for appellant.\nLendol D. Snow and David G. Mountcastle, both of Chicago, for appellee."
  },
  "file_name": "0076-01",
  "first_page_order": 98,
  "last_page_order": 100
}