{
  "id": 2688452,
  "name": "Otis Gregory et al., Plaintiffs-Appellees, v. Andrew Williams, Defendant-Appellant",
  "name_abbreviation": "Gregory v. Williams",
  "decision_date": "1973-10-01",
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  "last_updated": "2023-07-14T18:15:06.021527+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "Otis Gregory et al., Plaintiffs-Appellees, v. Andrew Williams, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE EGAN\ndelivered the opinion of the court:\nThe defendant, Andrew Williams, appeals from a judgment in a personal injury action. The case was set for a pretrial conference on March 8, 1972, but neither the defendant nor his attorney appeared. The conference was continued until March 15, 1972, and, when again the defendant and his attorney failed to appear, Judge Benjamin Nelson entered an order of default. Ill. Rev. Stat. 1971, ch. 110A, par. 219(c)(v).\nOn May 5, 1972, the case was assigned to Judge Mel R. Jiganti for trial on the issue of damages only. On May 8, 1972, the defendant filed before Judge Jiganti a motion to vacate the default order of Judge Nelson entered on March 15.- The motion was supported by the affidavit of the docket clerk of the defendant\u2019s attorneys, in which she swore that after March 8, she called the office of the plaintiffs\u2019 attorneys. on three different occasions to learn the new pretrial date and each time was told by a \u201cgirl answering the phone\u201d that she did not \u00a1mow the date but would find out and call her; she never received any call; on March 15, Judge Nelson called at 10:30 A.M. informing her of the pretrial and requested that an attorney come over immediately; she told Judge Nelson that there weren\u2019t any attorneys in the office but she would attempt to contact one of them in court and have him appear; she was unable to contact any of the attorneys and later received a call from fire attorneys for the plaintiffs informing her of the default., she then \u201ccurtailed [herj efforts to reach an attorney to appear at the pretrial.\u201d The motion was denied, and a jury fixed the damages at $9950. The defendant\u2019s attorney participated in the jury trial.\nThe defendant now seeks a new trial assigning as error the order of default and certain rulings at the trial. No report of the proceedings before Judge Jiganti has been filed before us, and the abstract does not contain the notice of appeal.\nThe plaintiffs have filed a motion to dismiss which we have taken with the case. They contend that the defendant did not seek a new trial in his post-trial motion and, therefore, has waived his right. In opposition to the motion to dismiss, the defendant argues that the denial of his motion for judgment n.o.v. is properly before this court. We disagree. In addition to the fact that his brief argued only the impropriety of the default order and rulings on evidence and instructions, the conclusion of the brief requests that the orders \u201cbe vacated and this matter be remanded for a new trial.\u201d Moreover, in no event could we decide whether he was entitled to a judgment n.o.v. in the absence of a report of proceedings. Shaw v. Kronst, 9 Ill.App.3d 807, 293 N.E.2d 153.\nWhile he concedes that the prayer for remittitur is waived, he points out that if the judgments were vacated, set aside and held for naught \u201cby the Appellate Court and a Directed Verdict in favor of the Defendant-Appellant were not ordered, the only alternative would be to allow this case to remain in a state of legal limbo [which he is sure the plaintiffs would not approve] or to order this matter set for a new trial.\u201d\nSection 68.1(5) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 68.1(5)) provides: \u201cAny party who fails to seek a new trial in his post-trial motion, either conditionally or unconditionally, as herein provided, waives the right to apply for a new trial, except in cases in which the jury has failed to reach a verdict.\u201d It has been repeatedly held that where a post-trial motion for judgment notwithstanding the verdict does not also include a motion for a new trial, the right to a new trial is waived. Goldbeck v. Cieslik, 5 Ill.App.2d 529, 126 N.E.2d 417; Starkey v. Brown Oil Co., 74 Ill.App.2d 270, 220 N.E.2d 12.\nSection 68.1(2) provides: \u201cRelief desired after trial in jury cases # # must be sought in a single post-trial motion. 6 \u00b0 \u00b0. The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate rehef. * \u00b0 A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.\u201d (Emphasis added.)\nThe post-trial motion included the ruling of Judge Jiganti denying his motion to vacate the default and prayed that: \u201cthe judgments herein be vacated and that judgment be entered in favor of the defendant. In the alternative * * * that the aforementioned judgments be vacated, set aside and held for naught and that the Court enter a remittitur on the aforementioned judgments.\u201d\nThe first paragraph of the motion simply asks that the judgments be \u201cvacated, set aside and held for naught, and that a judgment be entered in favor of the defendant and against the plaintiffs.\u201d We conclude, therefore, that a fair reading of the post-tiral motion leads to the conclusion that the defendant sought a judgment notwithstanding the verdict or a remittitur, and not a new trial.\nThe plaintiffs also point out that the defendant failed to include the notice of appeal in the abstract. Supreme Court Rule 342 (Ill. Rev. Stat. 1971, ch. 110A, par. 342(a)) provides that the Exceipts from the Record (abstract) shall contain \u201cthe judgment or order appealed from, the notice of appeal, and the parts of the record deemed essential for the judges of the reviewing court to read in order to decide the issues presented * * *.\u201d In dismissing an appeal for this same defect, the appellate court said in Shaw v. Kronst, 9 Ill.App.3d 807, 810, 293 N.E.2d 153:\n\u201cIt is clear that the notice of appeal of necessity appeals from certain specific action and is the principal pleading on appeal and that pursuant to Supreme Court Rule 342 it must be included in the abstract. [Citations.]\u201d\nThe defendant in opposition to the motion to dismiss argues that Shaw v. Kronst was not decided until after he had prepared the abstract of the record. While a serious question arises whether that should change our holding, we note that the same result was reached in Husted v. Thompson-Hayward Chemical Co., 62 Ill.App.2d 287, 294, 210 N.E.2d 614, which was decided in 1965.\nFor these reasons this appeal is dismissed.\nAppeal dismissed.\nGOLDBERG and HALLETT, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE EGAN"
      }
    ],
    "attorneys": [
      "Parrillo, Sims and Bresler, of Chicago, (David J. Weiss, of counsel,) for appellant.",
      "Reibman & Hoffman, Ltd., of Chicago, for appellees."
    ],
    "corrections": "",
    "head_matter": "Otis Gregory et al., Plaintiffs-Appellees, v. Andrew Williams, Defendant-Appellant.\nNo. 57990\nFirst District (1st Division)\nOctober 1, 1973.\nParrillo, Sims and Bresler, of Chicago, (David J. Weiss, of counsel,) for appellant.\nReibman & Hoffman, Ltd., of Chicago, for appellees."
  },
  "file_name": "0905-01",
  "first_page_order": 927,
  "last_page_order": 930
}