{
  "id": 2713174,
  "name": "Mattie McKinnon et al., Plaintiffs-Appellees, v. Yellow Cab Company et al., Defendants-Appellants",
  "name_abbreviation": "McKinnon v. Yellow Cab Co.",
  "decision_date": "1975-08-07",
  "docket_number": "No. 60086",
  "first_page": "316",
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  "last_updated": "2023-07-14T21:34:56.206419+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Mattie McKinnon et al., Plaintiffs-Appellees, v. Yellow Cab Company et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE McNAMARA\ndelivered the opinion of the court:\nThis is an appeal from an order of the circuit court of Cook County granting plaintiffs\u2019 petition, pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72), to vacate an earlier order of the court striking the complaint and dismissing the suit.\nThe original action arose when a vehicle in which plaintiffs were riding collided with a taxicab owned by defendant Yellow Cab Company and operated by its employee, defendant Robert G. Sparling. Plaintiffs filed a complaint on March 17, 1972, alleging negligence on the part of Sparling in the operation of the cab.\nAfter filing answers, defendants, on April 25, 1972, filed a motion to require plaintiffs to execute authorizations to the Internal Revenue Service permitting defendants to examine and photocopy plaintiffs\u2019 1970 and 1971 Federal income tax returns. The trial court granted the motion and gave plaintiffs 28 days to comply with it, setting a compliance hearing for August 1. The court twice gave plaintiffs continuances with respect to compliance with its order without objection by defendants. On January 16,1973, the hearing date set for the last continuance, defendants moved tire court to dismiss the cause for failure of plaintiffs to comply with its previous order. Plaintiffs were not present in court on that date. The court granted the motion.\nOn March 23, 1973, plaintiffs petitioned to vacate the order of January 16 and to reinstate the cause. In their petition they alleged that the complaint was dismissed on January 16, 1973, for their failure to supply the income tax authorizations to defendants; that a letter of authorization had been sent to defendants\u2019 attorneys on December 5, 1972; and that plaintiffs did not leam of the dismissal of their complaint until their counsel appeared at defense counsels\u2019 offices on March 7, 1973, to take a prearranged deposition. On June 19,1973, plaintiffs\u2019 motion to vacate was stricken by the court when they failed to appear in court on that date. On July 2, plaintiffs moved to vacate the order of June 19 and to set a hearing on the earlier motion filed by them. On July 5, defendants filed a reply in which their attorneys denied having received plaintiffs\u2019 letter of authorization. On November 28, 1973, the trial court vacated its earlier orders and reinstated plaintiffs\u2019 complaint.\nDefendants contend that the trial court erroneously granted plaintiffs\u2019 requested relief since the service of plaintiffs\u2019 petition was improper, since the petition did not bear plaintiffs\u2019 signatures, and since the petition did not allege that plaintiffs had a meritorious cause of action. Defendants additionally argue that the court erred in failing to hold an evidentiary hearing before vacating the order of dismissal.\nWe initially shall consider defendants\u2019 contention that the trial court erred in failing to conduct an evidentiary hearing before it agreed to vacate its earlier order striking the complaint and dismissing the causes of action.\nIn a section 72 proceeding, the petitioner must both allege and prove his right to the relief sought. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294.) The quantum of proof necessary to sustain the petition is a preponderance of the evidence. (Topel v. Personal Loan & Savings Bank (1937), 290 Ill.App. 558, 9 N.E.2d 75.) Where the central facts of the petition are controverted, a full and orderly evidentiary hearing must be held by the court. In re Estate of Wayne (1971), 133 Ill.App. 2d 565, 273 N.E.2d 720; see In re Estate of Zeno (1972), 4 Ill.App.3d 137, 280 N.E.2d 504.\nIn the present case plaintiffs stated in their petition that they maffed tire tax authorizations to defendants\u2019 attorneys on December 5, 1972. Defendants responded that their attorneys never received them. Defendants\u2019 response placed the basic allegations of the petition in issue so as to require an evidentiary hearing. Yet the record is silent as to whether such a hearing was ever held. (Compare County Board of School Trustees v. Bendt (1961), 30 Ill.App.2d 329, 174 N.E.2d 404.) The record merely shows that on November 28, 1973, the court sustained plaintiffs\u2019 motion to vacate the order of dismissal. Plaintiffs\u2019 contention in this court that a hearing was.held at which they exhibited a copy of the letter purportedly sent to defendants\u2019 attorneys is not only dehors the record but also insufficiently satisfies the requirement that the hearing be of an evidentiary nature, involving the examination of witnesses, under oath, subject to cross-examination. Accordingly, the matter must be remanded for a proper-hearing. (See Wilson v. Wilson (1965), 56 Ill.App.2d 187, 205 N.E.2d 636; In re Estate of Zeno.) Such a hearing, of course, would also determine whether plaintiffs exercised due diligence.\nThe remaining arguments of defendants \u2014 that the service of plaintiffs\u2019 petition was improper; that the petition did not bear plaintiffs\u2019 signatures; and that the petition did not allege that plaintiffs had a meritorious cause of action \u2014 were not raised in the trial court, and therefore are considered waived. See Park Avenue Lumber v. Nils A. Hofverberg, Inc. (1966), 76 Ill.App.2d 334, 222 N.E.2d 49; Pease v. Herb Julian Cab Co. (1972), 7 Ill.App.3d 179, 287 N.E.2d 200; Wilson v. Wilson.\nFor the reasons stated, the order of the circuit court of Cook County is reversed, and the cause is remanded for proceedings not inconsistent with the holdings in this opinion.\nOrder reversed and remanded.\nMcGLOON, P. J., and MEJDA, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE McNAMARA"
      }
    ],
    "attorneys": [
      "Jesmer and Harris, of Chicago (Robert Jesmer and Marvin Lanzel, of counsel), for appellants.",
      "Edward M. Solomon, of Chicago (Mark L. Ross, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "Mattie McKinnon et al., Plaintiffs-Appellees, v. Yellow Cab Company et al., Defendants-Appellants.\n(No. 60086;\nFirst District (3rd Division)\nAugust 7, 1975.\nJesmer and Harris, of Chicago (Robert Jesmer and Marvin Lanzel, of counsel), for appellants.\nEdward M. Solomon, of Chicago (Mark L. Ross, of counsel), for appellees."
  },
  "file_name": "0316-01",
  "first_page_order": 340,
  "last_page_order": 342
}