{
  "id": 2473360,
  "name": "Collette Belline, Plaintiff-Appellee, v. Vincent Italia et al., Defendants-(The Fraternal Order of Eagles, Aerie No. 1952, Defendant-Appellant.)",
  "name_abbreviation": "Belline v. Italia",
  "decision_date": "1971-06-23",
  "docket_number": "No. 54675",
  "first_page": "400",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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      "year": 1960,
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  "analysis": {
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  "last_updated": "2023-07-14T20:40:15.946523+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Collette Belline, Plaintiff-Appellee, v. Vincent Italia et al., Defendants\u2014(The Fraternal Order of Eagles, Aerie No. 1952, Defendant-Appellant.)"
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE ADESKO\ndelivered the opinion of the court:\nPlaintiff, Collette Belline, brought an action for personal injuries against defendants, Vincent Italia, The Melrose Park Little League, and The Fraternal Order of Eagles, Aerie No. 1952. Plaintiff alleged that her injuries were caused by defendant, Vincent Italia, when in an intoxicated state, shoved and pushed her at a dance sponsored by defendant, Melrose Park Little League, at a hall owned and controlled by defendant Fraternal Order of Eagles.\nOn January 6, 1969, a Magistrate of the Circuit Court of Cook County entered a default order against defendant Fraternal Order of Eagles. On January 10, 1969, pursuant to said order, a jury assessed plaintiff\u2019s damages in the amount of $7,000. On January 13, 1969, defendant Fraternal Order of Eagles moved to vacate the default judgment. The trial court denied defendant\u2019s motion. The sole issue on appeal is whether the trial court\u2019s refusal to set aside the default judgment was an improper application of discretion. The Statute which governs the outcome of this case, Ill. Rev. Stat, 1967, ch. 110, par. 50(5), provides:\n\u201cThe court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.\u201d\nEver since Mason v. McNamara (1870), 57 Ill. 274, 277, Illinois courts have been \u201cliberal in setting aside defaults at the term at which they were entered, where it appears that justice will be promoted thereby.\u201d The earlier cases required that a motion to set aside a default \u201cmust show that the party making the same acted with due diligence to protect his rights and that he has a meritorious defense.\u201d (Dalton v. Alexander (1956), 10 Ill.App.2d 273, 282, 135 N.E.2d 101.) The governing Statute was amended which caused the court in Widicus v. Southwestern Elec. Cooperative (1960), 26 Ill.App.2d 102, 108, 167 N.E.2d 799, to comment, \u201cwe do not believe this court now must categorically determine that a meritorious defense or a reasonable excuse be proved to justify setting aside a default. We believe that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice # * *. The hurried entry of a default is a denial of substantial justice to the defendant.\u201d This construction of the Statute was further approved in Trojan v. Marquette Nat. Bank (1967), 88 Ill.App.2d 428, 438, 232 N.E.2d 160, where the court stated:\n\u201cThe more recent trend of the court is to subordinate the existence of a meritorious defense or excusable neglect to the primary goal of assuring that justice be served by affording the defaulting party his day in court.\u201d\nMindful of these general principles as well as the court\u2019s dictate in Trojan v. Marquette Nat. Bank, supra, at page 439, that \u201cdetermining whether or not a default should be set aside is a question governed by the facts peculiar to each specific case * * we turn to the facts in the case before us.\nOn November 22, 1967, plaintiff filed a complaint based upon an alleged violation of the Liquor Control Act. Defendant, Fraternal Order of Eagles, entered its appearance and jury demand. Pursuant to court order, defendant was granted leave to effect the discovery deposition of the plaintiff. On October 24, 1968, attorneys for plaintiff and defendant attended a pre-trial conference with the Honorable Lionel Berc, Magistrate of the Circuit Court of Cook County. The cause was returned to the trial calendar and the attorneys were directed to communicate with each other concerning further progress of the case. On Monday, December 23, 1968, the cause first appeared \u201cabove the black line\u201d on the Fourth Municipal District trial call. According to instructions that appear in the Daily Municipal Court Record for the Fourth Municipal District, \u201ccases above the black line are subject to immediate assignment for trial and counsel shall answer the call daily until such case is assigned for trial, unless excused by the court.\u201d On Monday, January 6, 1969, after the Christmas recess, defense counsel claims that he telephoned the Clerk\u2019s office in the Fourth Municipal District and stated that he had become engaged in another matter before the Honorable Jacques Heilingoetter, Judge of the Circuit Comt of Cook County. He requested that this information be conveyed to the Presiding Judge. On January 6, 1969, this cause still appeared in the Daily Municipal Court Record as the last case on the trial call. On the same date, counsel for plaintiff responded to the call, but there was no appearance by defense counsel. The Honorable Francis X. Connell, Magistrate of the Circuit Court of Cook County, entered a default order in favor of the plaintiff and set the matter over to January 10, for a jury prove-up in accordance with defendant\u2019s earlier request for a jury trial. On January 7 and January 8, the case was still listed in the Daily Municipal Court Record as last on the trial call. On January 10, 1969, the jury assessed plaintiff\u2019s damages at $7,000.\nIn reviewing these facts, we note defense counsel\u2019s extensive participation in the case in entering an appearance and a jury demand; in petitioning for leave to effect a deposition; in filing an answer and attending a pre-trial conference. This extensive participation does not excuse defense counsel\u2019s failure to answer tiie trial call. However, it does not appear that defense counsel was wholly to blame. The critical dates to focus on, December 23 through January 6, spanned the Christmas and New Year holidays. On January 6, 1969, the first Monday after the vacation period, defense counsel claims he telephoned the Fourth Municipal District Clerk to inform the court he was engaged in another matter. The position of the case as last on the trial call on January 7 and 8, 1969, the two days immediately subsequent to the entry of the default order, supports the inference that the message had been relayed, at least to the Clerk.\nWe believe that the default order entered on January 6, followed by another ex paite proceeding, the jury prove-up on January 10, were harsh penalties to impose upon defendant where the neglect of defense counsel was doubtful. Accordingly, in light of the above cited cases, we find the trial court\u2019s failure to set aside the default judgment was a violation of defendant\u2019s right to fundamental justice. \u201cRights should be determined by default only as a last resort.\u201d Mieszoivski v. Norville (1965), 61 Ill.App.2d 289, 298, 209 N.E.2d 358.\nFor these reasons, the order denying the motion to set aside the default judgment is reversed and the cause is remanded with directions to the trial court to vacate the judgment and for further proceedings not inconsistent with the views expressed herein.\nOrder reversed and remanded with directions.\nBURMAN and DIERINGER, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE ADESKO"
      }
    ],
    "attorneys": [
      "Heineke, Schrader, Marsch & Cuncannan, of Chicago, (William H. Schrader, Richard T. Sikes, and Ronald J. Broida, of counsel,) for appellant.",
      "Frank J. Belline, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Collette Belline, Plaintiff-Appellee, v. Vincent Italia et al., Defendants\u2014(The Fraternal Order of Eagles, Aerie No. 1952, Defendant-Appellant.)\n(No. 54675;\nFirst District\nJune 23, 1971.\nHeineke, Schrader, Marsch & Cuncannan, of Chicago, (William H. Schrader, Richard T. Sikes, and Ronald J. Broida, of counsel,) for appellant.\nFrank J. Belline, of Chicago, for appellee."
  },
  "file_name": "0400-01",
  "first_page_order": 422,
  "last_page_order": 425
}