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Busser v. Noble

JANUARY 31, 1956.

MARY BUSSER, PLAINTIFF-APPELLEE,

v.

DONALD NOBLE, HAROLD K. PIEPER, ADMINISTRATOR OF ESTATE OF DONALD E. PIEPER, DECEASED, JACK SCHLUETER ET AL. ON APPEAL OF JOHN L. MOORE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lee county; the Hon. ROBERT L. BRACKEN, Judge, presiding. Reversed and remanded with directions. PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

Four automobiles were involved in a highway accident in Lee County shortly after midnight on the morning of October 18, 1952. The plaintiff, Mary Busser, was a guest passenger in one of the cars which was being driven by Donald Pieper. As a result of the accident, Donald Pieper was killed and Mary Busser was injured. On January 22, 1954, the instant complaint, consisting of twelve counts, was filed by Mary Busser to recover damages for the injuries which she sustained.

Donald Noble, Robert Lizer, and Jack Schlueter were the drivers of the other cars involved in the accident, and count one of the complaint sought a recovery from Noble, and counts two, three, and four sought a recovery from Lizer, Schlueter, and Pieper respectively. Counts five and six sought a recovery against defendant, Harold F. Considine. Counts seven and eight were directed against defendant, John L. Moore. Count nine sought a recovery against Ruth K. Carney as the owner of the premises where Moore conducted his tavern. Counts ten and eleven were directed against Frank Dempsey as the owner and operator of a tavern on certain described premises, and count twelve made Violet Dempsey, wife of Frank Dempsey, a defendant and sought to have a conveyance executed by Frank Dempsey to Violet Dempsey to certain described premises set aside as a fraudulent conveyance made with the intent to hinder and delay the plaintiff in collecting any judgment she might obtain against Frank Dempsey.

The same day the complaint was filed a summons was issued and on January 23, 1954, was duly served on the defendant, John L. Moore. February 15, 1954, was the third Monday in February and the first return day. The defendants, who were served, other than defendant Moore, appeared and filed answers or motions to dismiss. Defendant Moore did not appear, and on February 17, 1954, on the motion of the plaintiff, defendant Moore was defaulted, and on the same day a hearing was had before the court resulting in a judgment in favor of the plaintiff and against the defendant, John L. Moore, for $15,000 and costs.

On March 8, 1954, Moore filed his motion, supported by affidavits, to set aside the judgment rendered against him on February 17, 1954, and for leave to plead. This motion was heard and denied on March 16, 1954, and this appeal follows.

The only counts of the complaint involved in this appeal are counts seven and eight. Count seven alleged that on October 18, 1952, at approximately 12:30 o'clock a.m., Donald Noble was operating an automobile in a southerly direction upon Route 26 approximately two and one-half miles south of Dixon; that at the same time and place, Donald Pieper was operating an automobile in a northerly direction and Robert Lizer was operating an automobile in a northerly direction; that plaintiff was riding as a guest passenger in the motor vehicle being operated by Donald Pieper; that on October 17th and 18th, 1952, the defendant Moore owned and operated a tavern known as The Royal Palms and was engaged in selling alcoholic liquor, and upon those dates he sold or gave alcoholic liquor to Donald Pieper, a minor; that Pieper consumed said intoxicating liquor, and that said liquor caused or contributed to his intoxication at the time and place in question; that upon that occasion Donald Pieper did one or more of the following acts: (a) negligently drove his car while under the influence of intoxicating liquor; (b) negligently drove his car at a speed that was greater than reasonable or proper having regard for traffic and the use of the way; (c) negligently failed to drive his car upon the right half of the roadway; (d) negligently failed to keep his car under control; and (e) negligently failed to keep a proper lookout. This count then charged that as a direct and proximate result of the conduct aforesaid, the car in which the plaintiff was riding was struck and rolled upon its side, and the plaintiff was thrown in and about the car and upon the ground and thereby seriously injured. Count eight is the same as count seven with an additional paragraph which alleges that said sale of liquor to Donald Pieper was wilful and wanton and concluded that plaintiff was therefore entitled to recover both compensatory and exemplary damages against the defendant.

In support of the verified motion of the defendant to vacate the judgment, the affidavits of himself and F.J. Schukies were filed. The affidavit of the defendant states that immediately after he was served with summons in this case on January 22, 1954, he took the summons to the office of L.J. Welch Company at Dixon, through which he had purchased a policy of insurance; that upon the same day, R.H. Schmitt, of the Welch Company, sent the summons to Fidelity Insurance Agencies, Inc., at its address in Chicago; that on January 25, 1954, Fidelity Insurance Agencies advised the Welch Company it found no claim in their file involving the plaintiff in this suit and, therefore, could not refer the matter to the insuring company until further particulars were received; that on January 27, 1954, said R.H. Schmitt, of the Welch Company, wrote the Fidelity Insurance Agencies confirming a telephone conversation in which the Fidelity Insurance Agencies had stated that the claim had been located; that on January 28, 1954, the Welch Company was advised by Fidelity Insurance Agencies that the summons in this case had been duly forwarded to the claim department of the insuring company. In this affidavit the defendant further stated that at no time did he hear from the insuring company, but was advised by Fidelity Insurance Agencies that his interests would be protected; that on February 11th or 12th, 1954, he called Fidelity Insurance Agencies in Chicago and again advised them of the return day of this summons and was assured the matter would be taken care of.

The affidavit of F.J. Schukies stated that he was the claim examiner for the Exchange Insurance Association with offices at 175 West Jackson Boulevard, Chicago; that Exchange Insurance Association issued policy No. XLL11690 covering defendant as licensee, doing business as The Royal Palms; that this policy was sold by Fidelity Insurance Agencies, Inc., of Chicago; that the office of Exchange Insurance Association in Chicago is the Home office and that all documents, correspondence and summons relating to the outstanding policies of the company are delivered to the Home office in Chicago; that on January 28, 1954, the summons in this case was received in the mail room of affiant, having been received by the Insurance Exchange Association on January 25, 1954; that thereafter it was placed on the desk of affiant, along with some fifty-nine other files, but when or by whom affiant was unable to state; that the clerks in affiant's office are instructed to red-flag all matters which require immediate attention, but no such red marker was placed on this file; that affiant's attention was first called to this summons on February 18, 1954, after he received a telephone call informing him of the fact that this default judgment had been entered on February 17, 1954; that upon receipt of this information, affiant contacted the law firm of Fearer and Nye requesting them to represent defendant Moore, and when informed that they were unable to do so, arrangements were made with present counsel to represent appellant.

The Civil Practice Act provides that the court in which a judgment is rendered may, in its discretion, before final judgment, set aside any default and may, within thirty days after entry thereof, set aside any judgment or decree upon good cause shown by affidavit upon such terms and conditions as shall be reasonable (Ill. Rev. Stat. 1953, Chap. 110, sec. 50, par. 174, sub-par. 7 [Jones Ill. Stats. Ann. 104.050, subd. (7)]). Our Practice Act further provides that its provisions shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties (Ill. Rev. Stat. 1953, Chap. 110, par. 128, sec. 4 [Jones Ill. Stats. Ann. 104.004]).

[1-3] A motion to set aside a judgment and vacate an order of default is addressed to the sound legal discretion of the court in which it is made and unless there has been a palpable abuse of such discretion an Appellate Court should not interfere. If, however, the action of the court to which the application is made is unjust and oppressive and has resulted in a substantial injury to appellant, such action will be reversed on review. Such motion or application should show a meritorious defense and a reasonable excuse for not having made that defense in due time. (Hitchcock v. Herzer, 90 Ill. 543.)

In Mason v. McNamara, 57 Ill. 274, the court, after stating that as a general rule the Supreme Court would not review the action of the lower courts in matters of discretion, went on to observe that cases may arise in which there has been such a state of facts as to call upon the upper court to interpose, to promote justice, by reviewing the decision of the circuit court even in the exercise of discretionary powers. The court then said (p. 277): "As we understand the long and well settled practice in this state, it has always been liberal in setting aside defaults at the term at which they were entered, where it appears that justice will be promoted thereby. . . . where it appears by affidavit, that the party has a defense to the merits, either to the whole or a material part of the cause of action, it has been usual to set aside the default, if a reasonable excuse is shown for not having made the defense. . . . In such cases the object is that justice be done between the parties, and not to permit one party to obtain and retain an unjust advantage."

In McMurray v. Peabody Coal Co., 281 Ill. 218, at p. 226, the court said: "It has been the long and well established practice in this state for courts to be liberal in setting aside defaults at the term at which they are entered where it appears that justice will be promoted thereby."

In City of Moline v. Chicago, B. & Q.R. Co., 262 Ill. 52 at p. 65, in reversing a judgment and remanding the cause with directions to set aside the judgment of the lower court in a special tax proceeding and permit appellant to file objections to the confirmation of the tax, the court said: "Under the long and well settled practice in this state the courts have been liberal in setting aside defaults at the term at which they were entered where it appears that justice will be promoted thereby. When it appears by the affidavit filed in support of the motion that the party has a defense to the merits, either to the whole or a material part of the cause of action, it has been usual to set aside the default if a reasonable excuse is shown for not having made the defense."

In Sempier v. Goemann, 165 Wis. 103, 161 N.W. 354, it appeared that a summons and a copy of a complaint by which plaintiff sought to recover for personal injuries was served on one defendant in April, 1914, and upon the other defendant on May 2, 1914. The defendants turned these papers over to an agent of the Royal Indemnity Insurance Company and claim to have received and relied upon the assurance of such agent that the insurance company would look after the matter and defend the lawsuit if necessary. Thereafter plaintiff's attorney wrote one of the defendants on June 3, 1914, calling attention to the service and that the time for answering had expired, but no answer to this letter was received. About July 6, 1914, a personal interview was had by counsel for the plaintiff with one of the defendants and the agent of the insurance company and the situation was discussed. On October 16, 1914, the defendants were defaulted and a hearing had and a verdict was returned against the defendants. The defendants, learning of this through a newspaper account, immediately consulted counsel and an application was made to have the proceedings opened and they be allowed to defend. This application was granted and in affirming the order of the trial court, the Supreme Court stated it was satisfied from the record that "in so doing, the court acted well within the field of judicial discretion."

In Nash v. Treat, 45 Mont. 250, 122 P. 745, it appeared that the complaint contained two counts, the first against the defendant, D.E. Treat, and the second count against the said D.E. Treat and his wife. On July 17, 1911, the summons and a copy of the complaint were served on the wife, at which time her husband promised her that he would consult an attorney and enter a defense. He did not do so and on August 12, 1911, a default was taken and judgment entered against both defendants. On September 8, 1911, the wife filed her motion to set aside the default and vacate the judgment. The trial court sustained the motion and in affirming that order, the Supreme Court of Montana said that the single question presented by the record was whether the wife's failure to appear because of the promise of her co-defendant husband, was excusable neglect. In the course of its opinion, the court said: "While the courts should adhere to the rule that a party who has suffered a default ought not to have relief except upon showing a substantial excuse for his apparent neglect because the adverse party is prima facie justly entitled to the advantage which he has secured by the default, yet they should not indulge in refined distinctions or assign importance to matters of form, which might result in a denial of justice. Each case must be determined upon its own facts, and when the motion is made promptly and is supported by a showing which leaves the court in doubt or upon which reasonable minds might reach different conclusions, the doubt should be resolved in favor of the motion. . . . It is the general rule that when a judgment has been rendered against a ...


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