{
  "id": 12253908,
  "name": "Hamilton Glass Company, Appellant, v. Borin Manufacturing Company, Appellee",
  "name_abbreviation": "Hamilton Glass Co. v. Borin Manufacturing Co.",
  "decision_date": "1928-03-29",
  "docket_number": "Gen. No. 32,270",
  "first_page": "301",
  "last_page": "306",
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      "cite": "248 Ill. App. 301"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name": "Ill."
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  "last_updated": "2023-07-14T20:56:32.304286+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Hamilton Glass Company, Appellant, v. Borin Manufacturing Company, Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Holdom\ndelivered the opinion of the court.\nThis suit in assumpsit was commenced May 13, 1926. The declaration was filed May 28,1926, in which plaintiff claimed from defendant the sum of $708.22 for merchandise sold and delivered by the plaintiff to defendant. Summons was served to the June term, 1926, and defendant entered its appearance by counsel May 20,1926. There was filed with plaintiff\u2019s declaration an affidavit of claim showing due the amount above mentioned.\nOn June 25, 1926, defendant was defaulted for want of a plea and a judgment entered by default for $708.22. After the statutory time for filing a plea had expired, and on June 30, 1926, without leave of court or any application for leave to file, pleas had been made to the court, defendant filed pleas in the office of the clerk of the superior court. Execution on the judgment was issued June 30, 1926. Defendant on July 8, 1927, filed its motion supported by an affidavit to vacate the default judgment theretofore entered June 25, 1926. On July 9, 1926, an order was entered without notice to plaintiff or its attorneys, vacating the judgment. On July 10, plaintiff moved to vacate that judgment, which motion was denied. On September 23, 1926, defendant filed without leave of court certain amended pleas. On January 18, 1927, defendant\u2019s motion for a continuance.of the hearing of the cause was denied. On January 18,1927, the cause proceeded to trial before court and jury, in which there was a finding for plaintiff with damages assessed at the sum of $124.72.\nOn February 26, 1927, the following proceedings were had and order entered:\n\u201cThis cause coming on to be heard upon plaintiff\u2019s motion to strike from the records all orders entered and proceedings had herein subsequent to July 8th, 1926, and upon argument of counsel and due deliberation by the court, said motion is overruled, to which order the plaintiff, by its counsel, takes exception; This Cause further coming on to be heard upon the plaintiff\u2019s motion heretofore entered herein, for judgment non obstante veredicto, after argument of counsel and due deliberation by the court, said motion is' overruled, to which order plaintiff by its counsel, takes exception.\n\u201cAnd the court, being now fully advised in the premises, It Is Ordered that the plaintiff have judgment upon the verdict of the jury in the sum of $120.72 against the defendant herein;\n\u201cWhereupon, comes the said plaintiff, by'its attorney, and excepts to the orders and rulings of the court in overruling its motions to strike from the files all orders and pleadings had and entered subsequent to July 8th, 1926, and its motion for judgment non obstante veredicto, and prays an appeal from the Superior Court of Cook County to the Appellate Court of this State, which is ordered to be granted upon condition that said plaintiff does within thirty days from this date file herein its bond in the sum of $250.00, with sureties to be approved by this court, and upon further condition that the said plaintiff does file herein within sixty days from date its bill of exceptions.\u201d\nOn the trial it was stipulated between the attorneys of both parties that it might be considered as proven that plaintiff had manufactured and delivered to defendant glass and labor of the total value of $708.22, of which amount $375 represented the price for silvering 100 sets of mirrors.\nPlaintiff assigns for error and argues for reversal that the trial court was without jurisdiction to vacate the judgment rendered June 25,1926, of the June term, on July 9,1926, being one of the days of the succeeding July term; that all proceedings in the cause subsequent to the entry of the judgment at the June term are void; that the pleadings filed by defendant without leave of court should have been stricken on plaintiff\u2019s motion.\nAfter the June term the court was without jurisdiction to vacate or set aside the judgment or disturb the same upon motion. The motion to vacate was not grounded on Section 89 of the Practice Act, chapter 110, R. S., Cahill\u2019s St. eh. 110, f\u00ed89, which provides:\n11 The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.\u201d\nThe rule in this State is correctly stated in People v. Omega Chapter of Psi Upsilon Fraternity, 320 Ill. 326:\n\u201cIt has long been settled in this State, that after the expiration of a term of court at which a judgment is entered the court has no authority to set aside the judgment for any alleged error of law and can only amend it in matters of form, after notice to the opposite party.\u201d\nBy the judgment plaintiff had a vested right which the trial court had no power to disturb notwithstanding there may have been procedural errors in the record. If such there were they could only be corrected after the term at which the judgment was entered, by review on writ of error. It may have been error to have entered the judgment without notice to defendant\u2019s attorneys whose appearance was on file. However, that point does not call for our decision on this appeal. Defendant filed pleas after the time permitted by statute without leave of court. Such pleas so filed are unavailing, and may be entirely disregarded. Farmer v. Fowler, 288 Ill. 494, in which the court said:\nPlaintiff entered into no stipulation nor did any act which reinvested the trial court with jurisdiction after the June term, 1926. While it is true plaintiff\u2019s counsel took part in the second trial, he was forced so to do against his protest. The stipulation entered into on the trial above set out was simply as to two questions about which there was no dispute. Nothing found in that stipulation in the remotest degree referred to the vacated judgment, and no consent to the order vacating the judgment can be found in it either in apt terms or by construction.\nIt is also stated in defendant\u2019s brief that stay of execution was granted for 24 hours, but nothing of the kind is found in the record, nor is it claimed that such stay was granted on plaintiff\u2019s motion. Such unsupported statement cannot be considered de hors the record. Homewood v. Stein, 211 Ill. App. 359.\nFor the foregoing reasons the judgment of the superior court is reversed and the cause is remanded to that court with directions to expunge from the record all orders entered in said canse subsequent to the June term, 1926 of said court, and to restore to the record the judgment entered in said cause June 25, 1926, for the sum of $708.22.\njReversed and remanded with directions.\nTaylor, P. J., and Wilson, J., concur.",
        "type": "majority",
        "author": "Mr. Justice Holdom"
      }
    ],
    "attorneys": [
      "Henry H. Koven, for appellant.",
      "Pennish & Rashbaum, for appellee; Ben Abonin, of counsel."
    ],
    "corrections": "",
    "head_matter": "Hamilton Glass Company, Appellant, v. Borin Manufacturing Company, Appellee.\nGen. No. 32,270.\nOpinion filed March 29, 1928.\nRehearing denied April 9, 1928.\nHenry H. Koven, for appellant.\nPennish & Rashbaum, for appellee; Ben Abonin, of counsel."
  },
  "file_name": "0301-01",
  "first_page_order": 333,
  "last_page_order": 338
}