{
  "id": 5308260,
  "name": "Robert Webb, Plaintiff-Appellant, v. Ronald Swick et al., Defendants-Appellees",
  "name_abbreviation": "Webb v. Swick",
  "decision_date": "1974-12-05",
  "docket_number": "No. 59412",
  "first_page": "780",
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  "last_updated": "2023-07-14T15:53:16.970085+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Robert Webb, Plaintiff-Appellant, v. Ronald Swick et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nThis is an appeal from the denial of plaintiffs section 72 motion (Ill. Rev. Stat. 1973, ch. 110, par. 72) to vacate an ex parte order of dismissal the court entered upon the defendants\u2019 motion to strike and dismiss plaintiffs complaint. Plaintiff contends that the court abused its discretion in denying his section 72 motion, that the court improperly granted defendants\u2019 motion to strike and dismiss plaintiffs complaint, and that the statute (111. Rev. Stat. 1965, ch. 85, par. 8 \u2014 102) relied upon in defendants\u2019 motion is violative of the protections afforded in the Constitutions of the United States and the State of Illinois.\nWe affirm.\nThe undisputed facts of this case are as follows. On June 2, 1971 plaintiff commenced this action against defendants to recover damages allegedly caused by the conduct of defendants, two Chicago police officers, on July 5, 1968. On February 9, 1973, a hearing was scheduled for defendants\u2019 motion to dismiss the complaint for plaintiff failure to comply with the statutory notice provisions of section 8 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 8 \u2014 102), since defendants were municipal employees at the time of the complained of incident. Plaintiffs counsel alleges that he had departed the designated courtroom for a short time, after having first asked that the hearing be delayed for a short period of time. Counsel returned \u201ca short period of time\u201d later to find that defendants\u2019 motion had been granted ex parte and plaintiffs complaint had been dismissed. On the 30th day after the order, plaintiff\u2019s notice of motion to vacate the ex parte order was served upon defendants and plaintiffs lawyer\u2019s clerk spindled the matter to come up for hearing by the court on March 13, 1973. At the hearing, the trial court refused to entertain plaintiff\u2019s motion because such motions may be brought to the trial court only within 30 days of an order or judgment, noting that the motion was presented on the 31st day.\nSubsequently, plaintiff moved under section 72 of the Civil Practice Act to vacate the ex parte order of dismissal of February 9, 1973. The court heard arguments on the motion and found that plaintiff was not entitied to relief under section 72 and denied the motion. Plaintiff appeals only from the denial of his section 72 motion.\nPlaintiffs first allegation of error is that the trial court abused its discretion in denying plaintiff\u2019s section 72 motion. The court found that the plaintiff was not diligent in presenting a motion to vacate the prior order, and had not properly alleged a meritorious defense pursuant to section 72 of the Civil Practice Act.\nA petition under section 72, although filed in the original proceeding, is not a continuation thereof, but is treated as a new action. It has the limited function of bringing to the court\u2019s attention facts not appearing of record which, if known to the court at the time of its order, would have prevented rendition of the order. (People v. Stevens (1970), 127 Ill.App.2d 415, 419.) The petitioner must allege ultimate facts in his petition which reveal both a meritorious defense in the original action and the exercise of due chligence in presenting such a defense. (Hall v. Hall (1973), 15 Ill.App.3d 599, 602.) Such a petition is addressed to the sound discretion of the court, whose ruling will not be interfered with unless there was an abuse of that discretion. Skach v. Lydon (1973), 16 Ill.App.3d 610.\nIn the instant case, the trial court entered an ex parte order upon defendants\u2019 motion to strike and dismiss plaintiff\u2019s complaint for failure to comply with the statutory notice requirements of section 8 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 8 \u2014 102). This section provides that * * any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employees caused the injury,\u201d must serve notice upon the local public entity within six months of the date the cause of action arose. The court\u2019s order stated that the court was \u201cadvised in the premises\u201d and that there was \u201cno insurance in the matter as to the Police Department of the City of Chicago.\u201d To properly allege a meritorious defense to defendants\u2019 motion, plaintiff should have aHeged sufficient facts not appearing of record which, if known to the trial court would have prevented the court\u2019s order dismissing plaintiff\u2019s complaint.\nWith regard to his defense to defendants\u2019 motion, plaintiff\u2019s affidavit accompanying his section 72 motion states:\n\u201cThat the dismissal was apparently based upon statute [sic] of the State of Illinois which is not applicable to this cause of action or if held to be applicable said statute would be in violation of the protections afforded in both the Ilfinois and the United States Constitutions.\u201d\nDefendants argue in support of the court's ruling that plaintiffs petition merely states legal conclusions which are insufficient to support a section 72 motion.\nIn Aetna Casualty & Surety Co. v. Sanders (1973), 15 Ill.App.3d 573, 577, the court wrote:\n\u201cThe decisions are numerous holding that the grounds and facts upon which the merits of the defense arise must be stated so that the court will be able to judge the merits of such defense. [Citations.]\u201d\nIn that case, the petitioner\u2019s allegation that she \u201cwas not responsible for the injuries\u201d was held to be nonfactual, and a conclusion of the pleader which was an insufficient showing of a good and meritorious defense under section 72.\nIn the case at bar, we reach a similar conclusion, and hold that plaintiffs bare allegations that the notice statute involved (Ill. Rev. Stat. 1965, ch. 85, par. 8 \u2014 102) was \u201cnot applicable to this cause of action\u201d and unconstitutional were insufficient to state sufficient facts to properly allege a meritorious defense to defendants\u2019 motion to dismiss plaintiff\u2019s complaint for failure to comply with the notice statute. Accordingly the court below did not err in denying plaintiff\u2019s section 72 motion.\nAlthough plaintiff argues that this court should exercise its equitable powers to prevent injustice, we feel that the circuit court properly exercised its power in this case, and we decline to interfere.\nIn passing, we note that plaintiff has failed to file either excerpts from the record or an abstract of record with this court, as provided for in Supreme Court Rule 342(b). Although we would have been warranted in dismissing the instant appeal for such a failure, we chose to consider the case on its merits. The same result would have been obtained. Denenberg v. Prudence Mutual Casualty Co. (1970), 120 Ill.App.2d 68; Frederick Chusid & Co. v. Collins Tuttle & Co., Inc. (1973), 10 Ill.App.3d 818, 295 N.E.2d 74.\nPlaintiffs remaining contentions concerning the propriety of the circuit court\u2019s granting of defendants\u2019 motion are raised for the first time on appeal, and therefore will not be considered.\nFor the abovementioned reasons, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nMcNAMARA, P. J., and MEJDA, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "Michael W. Schaefer, of Gordon, Brustin & Schaefer, Ltd., of Chicago, for appellant.",
      "Bichard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Jerome A. Siegan, Assistant Coiporation Counsel, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "Robert Webb, Plaintiff-Appellant, v. Ronald Swick et al., Defendants-Appellees.\n(No. 59412;\nFirst District (3rd Division)\nDecember 5, 1974.\nMichael W. Schaefer, of Gordon, Brustin & Schaefer, Ltd., of Chicago, for appellant.\nBichard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Jerome A. Siegan, Assistant Coiporation Counsel, of counsel), for appellees."
  },
  "file_name": "0780-01",
  "first_page_order": 804,
  "last_page_order": 807
}