{
  "id": 2471949,
  "name": "Robert E. Martin, Plaintiff-Appellant, v. Philip Kargman, Defendant-Appellee",
  "name_abbreviation": "Martin v. Kargman",
  "decision_date": "1971-07-08",
  "docket_number": "No. 54816",
  "first_page": "545",
  "last_page": "548",
  "citations": [
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      "type": "official",
      "cite": "133 Ill. App. 2d 545"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "category": "reporters:state_regional",
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        2554472
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        "/ill-app-2d/84/0247-01"
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    {
      "cite": "230 N.E.2d 27",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1967,
      "opinion_index": 0
    },
    {
      "cite": "87 Ill.App.2d 452",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        2547531
      ],
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/87/0452-01"
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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": [
      "Robert E. Martin, Plaintiff-Appellant, v. Philip Kargman, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nThis is an appeal from a denial by the Circuit Comt of plaintiff\u2019s petition pursuant to Section 72 of the Civil Practice Act wherein he asked that a court order dismissing his action for want of prosecution be vacated.\nIn this appeal plaintiff argues: First, that insofar as plaintiff had a judgment by confession which was opened pursuant to Ill. Rev. Stat. 1967, ch. 110A, sec. 276, merely dismissing plaintiff for failure to prosecute could not effect plaintiff\u2019s judgment. Second, notice of dismissal was never given to plaintiff as required under Ill. Rev. Stat. 1967, ch. 110, sec. 50.1. Third, justice and fairness required the trial comt to grant the relief prayed for in plaintiff\u2019s petition.\nWe reverse.\nOn April 19, 1968, plaintiff filed a complaint in the Municipal Division of the Circuit Court of Cook County with defendant\u2019s cognovit attached. On May 1, 1968, a judgment by confession of $5,507.50 was entered against the defendant. Defendant filed a petition to vacate this judgment and requested leave to file an answer. On July 31, 1968, the judgment against defendant was opened, and defendant\u2019s answer was filed. That same day an order was entered assigning the cause to be heard on November 6, 1968.\nOn October 1, 1968, plaintiff\u2019s first attorney and defendant\u2019s attorney entered into a signed agreement to stipulate to consolidate four other matters pending between the parties with the case in issue. However, the stipulation was never filed with the court.\nShortly thereafter, plaintiff retained new counsel, and plaintiff\u2019s first attorney delivered his files to the new firm on October 10. Upon hearing of this change, defendant\u2019s attorney object to the attorney who was to handle plaintiff\u2019s case, claiming a conflict of interest. Consequently, plaintiff\u2019s new attorney applied to the Chicago Bar Association for an opinion regarding the propriety of his representing plaintiff. Because the Bar Association did not rule that the new attorney could represent plaintiff with propriety until February 21, 1969, when the case was called on November 6, neither plaintiff\u2019s first attorney (thinking he was removed) nor plaintiff\u2019s new attorney (who did not consider himself of counsel at that time) appeared.\nHowever, an associate in the firm of defendant\u2019s attorney did appear on November 6, and although he himself was not ready to go to trial, he requested the trial court to dismiss the case for want of prosecution. This associate claimed to be unaware at that time of the stipulation to consolidate.\nIt appears that no notice was sent to plaintiff pursuant to Ill. Rev. Stat. 1967, ch. 110, sec. 50.1, and as a result, plaintiff did not know of the dismissal of his suit. It further appears that defendant\u2019s attorney was not notified of the dismissal by his associate who made the appearance for the firm.\nFrom February 1, 1969, until June 1, 1969, plaintiff\u2019s new attorney and defendant\u2019s attorney held discussions in which they attempted to settle the dispute between the parties. Only after settlement appeared impossible did defendant\u2019s attorney become aware of the order of dismissal. He immediately communicated with plaintiff\u2019s attorney, and offered to stipulate to reinstate the cause provided his client authorized him to do so.\nWhen defendant refused to so stipulate, plaintiff filed his Section 72 petition on June 3. The issue at the hearing was whether plaintiff should have had knowledge of the trial date of November 6, 1968. The petition was denied on October 20, 1969.\nWhile Section 72 does not reheve a party of the consequences of his own negligence, including incompetency of counsel (Mehlenbacher v. Elgin, Joliet & Eastern R.R. Co. (1967), 87 Ill.App.2d 452, 230 N.E.2d 27), a Section 72 petition to reinstate a dismissed case invokes the equitable powers of the court as justice and fairness require. Esczuk v. Chicago Transit Authority (1967), 84 Ill.App.2d 247, 228 N.E.2d 553.\nSeveral facts present in this appeal lead us to conclude that this case must be reversed. To begin with, when the plaintiff first wished to change counsel, it was the defendant\u2019s attorney who objected to the new lawyer. This new lawyer made application to the Bar Association for an opinion regarding his propriety in representing plaintiff. There was no showing that he ever had knowledge of the November 6 hearing, and plaintiff\u2019s first attorney by then considered himself removed from the case.\nThe record discloses that during the period between plaintiff\u2019s retention of his new lawyer in October of 1968 and June of 1969 when it was discovered that a dismissal had been entered, plaintiff\u2019s attorney and defendant\u2019s attorney continued to negotiate a settlement on the consolidated matters of which this case was one. This effort was made in spite of the fact that a member of defendant\u2019s firm had obtained a dismissal of the cause in November of 1968. Thus, although defendant\u2019s attorney had at least constructive knowledge of the dismissal, he continued negotiation with plaintiffs attorney for many months. As between plaintiffs counsel and defendant\u2019s counsel, the latter is best able to know what goes on in his own firm.\nThis carrying on of negotiations as if the case were still alive acted to confuse the real status of plaintiffs rights and precluded him from raising a timely objection to the dismissal of his suit for want of prosecution.\nWe feel that this was a situation which addressed itself to the equitable powers of the trial court, and that plaintiff should have an opportunity to consolidate this case as per the agreement to stipulate entered into between the parties.\nReversed and remanded.\nMcNAMARA, P. J., and DEMPSEY, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "I. Harvey Levinson, of Chicago, for appellant.",
      "Hoffman & Davis, of Chicago, (Maurice L. Davis and Alvin L. Kruse, of counsel,) for appellee."
    ],
    "corrections": "",
    "head_matter": "Robert E. Martin, Plaintiff-Appellant, v. Philip Kargman, Defendant-Appellee.\n(No. 54816;\nFirst District\nJuly 8, 1971.\nI. Harvey Levinson, of Chicago, for appellant.\nHoffman & Davis, of Chicago, (Maurice L. Davis and Alvin L. Kruse, of counsel,) for appellee."
  },
  "file_name": "0545-01",
  "first_page_order": 567,
  "last_page_order": 570
}