{
  "id": 5270368,
  "name": "Robert Jones, Plaintiff-Appellant, v. Joseph Reuss, d/b/a J & J Service Station, Defendant-Appellee",
  "name_abbreviation": "Jones v. Reuss",
  "decision_date": "1964-03-30",
  "docket_number": "Gen. No. 49,240",
  "first_page": "212",
  "last_page": "215",
  "citations": [
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      "cite": "47 Ill. App. 2d 212"
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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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    {
      "cite": "183 NE2d 188",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1962,
      "opinion_index": 0
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    {
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      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
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      "cite": "186 NE2d 659",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1962,
      "opinion_index": 0
    },
    {
      "cite": "38 Ill App2d 128",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5255908
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      "year": 1962,
      "pin_cites": [
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          "page": "133"
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      "opinion_index": 0,
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      ]
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    {
      "cite": "173 NE2d 525",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1961,
      "opinion_index": 0
    },
    {
      "cite": "29 Ill App2d 374",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5219680
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      "year": 1961,
      "pin_cites": [
        {
          "page": "381"
        }
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      "opinion_index": 0,
      "case_paths": [
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  "analysis": {
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  "last_updated": "2023-07-14T21:56:16.449907+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "BURMAN and KLUCZYNSKI, JJ., concur."
    ],
    "parties": [
      "Robert Jones, Plaintiff-Appellant, v. Joseph Reuss, d/b/a J & J Service Station, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE MURPHY\ndelivered the opinion of the court.\nPlaintiff, Robert Jones, appeals from an order sustaining defendant\u2019s motion to strike plaintiff\u2019s petition based on section 72 of the Civil Practice Act. Plaintiff seeks to modify an ex parte judgment entered February 15, 1962, which dismissed plaintiff\u2019s complaint, found defendant not guilty, and assessed costs against plaintiff.\nThe record shows the complaint and answer were filed in 1960. On September 7, 1961, an order was entered directing plaintiff to produce specified income tax returns on or before October 1,1961. Plaintiff did not comply with tbe order, and on November 14, 1961, pursuant to notice to plaintiff, a judgment was entered which dismissed plaintiff\u2019s complaint and found defendant not guilty. Subsequently, by stipulation of counsel, this judgment was vacated on December 14, 1961.\nOn January 30,1962, defendant again filed a motion seeking to enforce compliance by plaintiff with the order to produce his income tax returns. This motion was continued for hearing until February 15, 1962, and on that day the court entered the instant judgment \u201cthat the plaintiff\u2019s complaint be dismissed, that plaintiff take nothing from the defendant by the action, that defendant be found not guilty, that costs be assessed against the plaintiff and that execution be issued therefor, that plaintiff\u2019s cause of action be determined, and that plaintiff go hence without day.\u201d About eleven months later, on February 13, 1963, plaintiff filed a motion to vacate the judgment of February 15, 1962, and, after a hearing, the motion was denied.\nSubsequently, on April 24, 1963, plaintiff filed a petition expressly under section 72 to modify the judgment of February 15, 1962, alleging that the judgment \u201cwas entered through a mistake of fact, there being no motion filed by the defendant for the entry for that particular order, that there was no trial by jury, that the order entered on said day should have recited that because of the failure of the plaintiff to comply with the several orders of Court to produce his income tax form or to authorize the defendant to inspect them, the Complaint should have been stricken and the suit dismissed.\u201d\nDefendant\u2019s motion to strike this petition alleges in substance (1) the February 13, 1963, order, \u201centered more than 30 days prior to the instant Petition, is res judicata to the relief presently requested\u201d; (2) plaintiff\u2019s present petition does not set forth facts indicating that he has exercised due diligence in preventing the entry of the ex parte judgment (Dann v. Gumbiner, 29 Ill App2d 374, 381, 173 NE2d 525 (1961); Colletti v. Schrieffer\u2019s Motor Service, Inc., 38 Ill App2d 128, 133, 186 NE2d 659 (1962); and (3) the relief granted by the court was within the jurisdiction and discretion of the court.\nPlaintiff admits that the court had authority on February 15, 1962, to dismiss the complaint under Supreme Court Rule 19-12, which provides that if a party \u201cunreasonably refuses to comply with any provision of Rules 17 to 19-12, both inclusive, or Rule 22, or fails to comply with any order entered under said rules, the court may, on motion,\u201d order that his complaint be dismissed and judgment entered on the remaining pleadings in the case. Plaintiff argues that the judgment of February 15, 1962, should have been limited to the prayer for relief in defendant\u2019s motion, which was \u201cfor an order striking [plaintiff\u2019s] Complaint and dismissing the lawsuit.\u201d\nAfter examining the record, plaintiff\u2019s petition and defendant\u2019s motion to strike, and although any one of the three grounds set forth in defendant\u2019s motion to strike might be sufficient to sustain the order which struck plaintiff\u2019s petition, we have concluded the doctrine of res judicata is determinative here. In general terms, it is the rule that where the second action is on the same cause of action and between the same parties, all matters which might have been litigated or decided are conclusively settled by the judgment or ruling in the former action. 23 ILP, Judgments, \u00a7 378; Schoenbrod v. Rosenthal, 36 Ill App2d 112, 116, 183 NE2d 188 (1962).\nPlaintiff\u2019s motion of February 13, 1963, to vacate tbe judgment of February 15, 1962, was treated by the court and counsel as a petition filed under the provisions of section 72, and was denied after a hearing on the merits. Plaintiff did not appeal from that final order, which was expressly appealable under the provisions of section 72(6). Although plaintiff\u2019s petition of April 24, 1963, seeks to modify! rather than vacate the judgment of February 15,1962, we believe this petition is essentially a second proceeding by plaintiff under the provisions of section 72. Therefore, it is a matter which might have been litigated or decided in the motion to vacate and is to be regarded as presenting a matter concluded by the order of February 13, 1963.\nAs we believe our conclusion and the reasons given therefor dispose of plaintiff\u2019s other contentions, the order appealed from is affirmed.\nAffirmed.\nBURMAN and KLUCZYNSKI, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE MURPHY"
      }
    ],
    "attorneys": [
      "Gomberg, Missner & Lacob, of Chicago (Sidney D. Missner, of counsel), for appellant.",
      "Jacobs & McKenna, of Chicago (Barry L. Kroll, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "Robert Jones, Plaintiff-Appellant, v. Joseph Reuss, d/b/a J & J Service Station, Defendant-Appellee.\nGen. No. 49,240.\nFirst District, First Division.\nMarch 30, 1964.\nRehearing denied April 20, 1964.\nGomberg, Missner & Lacob, of Chicago (Sidney D. Missner, of counsel), for appellant.\nJacobs & McKenna, of Chicago (Barry L. Kroll, of counsel), for appellee."
  },
  "file_name": "0212-01",
  "first_page_order": 228,
  "last_page_order": 231
}