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Harder v. Advance Transp. Co.

AUGUST 25, 1960.

NONA IDYLLE HARDER AND DONNA SOBIN, PLAINTIFFS-APPELLEES,

v.

ADVANCE TRANSPORTATION COMPANY, INC., DEFENDANT-APPELLANT, AND CONTINENTAL CHAIR COMPANY, CO-DEFENDANT.



Appeal from the Circuit Court of Rock Island county; the Hon. A.J. SCHEINEMAN, Judge, presiding. Affirmed.

CROW, P.J.

This was an action for personal injuries and property damages by the plaintiffs-appellees Nona Idylle Harder and Donna Sobin in the Circuit Court of Rock Island County against the defendant-appellant Advance Transportation Co., Inc., and the co-defendant Continental Chair Company. The co-defendant is not here concerned. The complaint alleges injuries and damages resulting from a collision of an auto in which the plaintiffs were riding and tractor trailer units of the defendants while the defendant-appellant's unit was operated by its employee, Theodore Markley, March 1, 1958 on a highway in Rock Island County. Service was had, as indicated by the return of the Sheriff of Cook County, on the defendant-appellant Advance Transportation Co. on March 20, 1959, by leaving a copy with Roger A. Young, agent of the Advance Transportation Company, Inc., at its place of business in Chicago. On April 23, 1959, no plea or appearance of the defendant-appellant being on file, a default was entered, damages assessed, and judgments rendered against it in favor of Nona Harder for $1500.00, and of Donna Sobin for $3500.00. On July 28, 1959, more than 90 days after the default judgments were rendered, the defendant-appellant Advance Transportation Company, Inc., filed a motion to vacate the judgments, supported by certain affidavits. This appears to be a proceeding brought under Sec. 72 of the Civil Practice Act, Ch. 110, Ill. Rev. Stats., 1959, par. 72, and we shall consider the motion as a petition under that section. The plaintiffs filed a motion to strike or deny the defendant-appellant's motion to vacate. The Court allowed the motion to strike or deny and denied the motion to vacate, and this appeal by the defendant-appellant Advance Transportation Co. resulted.

Section 72 of the Civil Practice Act, Ch. 110, Ill. Rev. Stats., 1959, par. 72, provides, in part, that "Relief from final orders, judgments and decrees, after 30 days from the entry thereof, may be had upon petition as provided in this section. . . ."

[1-3] In a case of this character, involving a default judgment, if the Court has jurisdiction of the parties and of the subject matter, the Trial Court's action in declining to vacate a judgment after 30 days from the entry thereof will not be reversed unless there has been an abuse of its sound judicial discretion, and the burden was on the defendant-appellant to show affirmatively both due diligence to protect its rights or lack of negligence on its part in not presenting its alleged defense in apt time, and a meritorious defense — a showing of an alleged meritorious defense, alone, is not sufficient: Nitsche v. Chicago (1917), 280 Ill. 268, 117 N.E. 500; Barrett v. Queen City Cycle Co. (1899), 179 Ill. 68, 53 N.E. 550. A motion to set aside a final judgment of a court having jurisdiction is of serious import and the maintenance of stability requires it be so treated.

The motion to vacate and the affidavits thereto attached in behalf of the defendant-appellant purported to show a meritorious defense to the effect it was not a motor vehicle of that company which was involved in the accident with the plaintiffs — that it had no interest in the unit involved, that Markley was not employed by it, that it operated no vehicle in Rock Island County, and the unit involved was owned and operated by another named company — and attempted to show lack of negligence on the part of the defendant-appellant in not presenting its alleged defense in apt time. The plaintiffs' motion to strike or deny the defendant-appellant's motion to vacate alleged that more than 30 days having elapsed since the judgment the Court had no jurisdiction to vacate it, the defendant's motion and affidavits were insufficient under Section 72 of the Civil Practice Act, and the defendant was culpably negligent, and that the defendant-appellant's culpable negligence is further shown by the affidavit of the plaintiffs' attorney attached to the motion which affidavit recites how he ascertained the name of defendant-appellant, that he wrote the defendant-appellant a letter concerning the matter prior to suit, and he had received no reply. It may be assumed, for the present purpose, that the appellant's motion and affidavits show an alleged meritorious defense, if correct and if proved.

To show proper diligence or lack of negligence on its part the affidavit of Roger A. Young is principally relied upon. This affidavit is as follows:

"I am an adult resident of the City and County of Milwaukee, State of Wisconsin, and am employed as a clerk by the Advance Transportation Company. I have been working in Milwaukee for the Company since June 22, 1959, and before coming to Milwaukee, I was employed by the same Company as a clerk in the Chicago office located at 3475 South Cicero Avenue, Chicago, Illinois.

"I had worked in that office for approximately two years before coming to Milwaukee. While working in Chicago, I was a rate clerk and also assisted the office manager. A part of my duties was to accept service of legal papers and documents such as garnishments involving our drivers, wage assignments, and also pleadings in civil suits involving such things as accidents. I prepared accident reports when appropriate as required by the Company's policy of automobile liability insurance with the American Mutual Liability Insurance Company. When a legal paper with regard to an accident was served on me, I always sent it by mail to the American Mutual Liability Insurance Company's office in Chicago. I am referring to its main office which, as I recall, was located on North Avenue. After the papers were sent to American Mutual, I considered that they would handle the matter from there on, and I was never instructed nor did I feel it necessary to check with the insurance company to see that they followed through and protected the interests of Advance Transportation Company. While on the job with the Chicago office during the month of May, 1959, a bailiff came to the office with some pleadings in the above matter. From what I recall, these pleadings involved a suit against Advance Transportation Company for damages as a result of injuries allegedly sustained in an automobile accident involving, as was claimed in the pleadings, a company truck. As was my custom I looked at the files to determine what this accident was about. After examining the files I could find no record of such accident. I also noted that the accident allegedly had taken place in Rock Island County, Illinois. This I thought was unusual because the Company's trucks do not operate in Rock Island County and accordingly, before accepting the papers, I called the office of the Clerk of the Circuit Court of Cook County and told the man who answered that I could not accept the papers being served upon me because I knew the truck involved in the accident could not have been a company truck. The man who spoke to me from the Clerk's office told me to accept the papers anyway and after accepting them send them on to the Company's insurance company. Acting on this advice, I accepted the papers and gave my name to the bailiff. I then put the papers in an envelope addressed to the American Mutual Liability Insurance Company at its Chicago office and to the attention of Miss Pilot. It had always been my custom to send this type of papers to the main office in Chicago, and I had been instructed when I began work that they were to be sent to Miss Pilot's attention. I then sealed and stamped the envelope and gave it to the cashier who handles mailing. The cashier takes care of seeing to it that mail is put in a mail box for collection by the post office department. I assumed that the cashier mailed the letter as I never heard that he did not. Before mailing the papers to the insurance company, I brought them to Mr. Edward Bleskan, the operations manager, and asked him if I should send them to the insurance company as I had been told by the Clerk of the Circuit Court to do. Mr. Bleskan said that I should.

"After sending the papers to the insurance company, I never heard of the matter again until a default judgment had been entered against the Advance Transportation Company. During the time between the original service of the papers upon me and the time when I learned about the default judgment, I had always assumed that the insurance company had taken care of the matter. On all prior occasions when the Advance Transportation Company was involved in matters arising in connection with the liability insurance the American Mutual took care of the matter and did not require the Advance Transportation Company to do anything else unless they asked them. During all this period I was never asked by American Mutual to get them any information nor do anything else with regard to the accident so I had assumed that the insurance company would completely handle the matter and protect the interests of my employer."

The defendant-appellant's other supporting affidavits are by Theodore Markley, August Lindner, Mary Piloet, and John Carey. The affidavit of Mr. Markley is to the effect he was the operator of a tractor trailer unit involved in the accident in question, he was employed by another company, that company owned and operated the unit, and he was not employed by the defendant-appellant. The affidavit of Mr. Lindner is to the effect he is an officer of the defendant-appellant, it has no authority to operate in and does not operate in Rock Island County, and he finds no information or record indicating any truck or employee of the defendant-appellant was involved in the accident in question. The affidavit of Mary Piloet is to the effect she is the claim clerical supervisor in the Chicago District Office of American Mutual Liability Insurance Co., 6978 W. North Ave., Chicago, she supervises mail clerks, file clerks and typists, she has instructed all employees processing incoming mail to deliver all summonses, complaints, or other legal papers, and the case files, upon receipt, to John Carey, the District Claim Manager, that to the best of her knowledge no summons or complaint in this case were received by her office, and the first notice she had of this case was June 16, 1959 when she received a legal notice of a default judgment. The affidavit of John Carey is to the effect he is the District Claim Manager of the Chicago Office of American Mutual Liability Ins. Co., 6978 W. North Ave., Chicago, he is in charge of all claim personnel, all legal papers are inspected and processed by him, neither he nor any of the employees there ever received, to the best of his knowledge, any summons or complaint in this case, and the first notice he had of the case was June 16, 1959 when he received a notice of default judgment. The defendant-appellant does not include the affidavits of Mary Piloet or John Carey in its abstract here, but they are in the record.

It may also be observed that although the record indicates that the defendant-appellant's motion to vacate alleges at one point that "due to an apparent failure in the United States Post Office Department, said summons and complaint were never received at the Chicago office of American Mutual Liability Insurance Company", that language is omitted by the defendant-appellant in its statement of its motion in its abstract here, there is no affidavit purporting to support the allegation of any failure in the United States Post Office Department, and the defendant-appellant does not argue that matter in its brief here.

In Brockmeyer v. Duncan (1960), 18 Ill.2d 502, the Court said, p. 505:

"Section 72 of the Civil Practice Act, which substitutes a simple remedy by petition for various forms of post judgment relief theretofore available, enables a party to bring before the court rendering a judgment matters of fact not appearing in the record which, if known to the court at the time the judgment was entered, would have prevented its rendition; and proceedings thereunder are governed by rules and principles heretofore announced by this court. Glenn v. People, 9 Ill.2d 335.

"A trial court cannot review its own order or judgment and correct the same, either as to any question of fact found or decided by the court or as to any question of law decided by it after the expiration of thirty days. (See Chapman v. North American Life Ins. Co., 292 Ill. 179.) A petition under section 72 of the Civil Practice Act is therefore the filing of a new action; and it is necessary, as in any civil case, that the petitioner allege and prove a right to the relief sought. Where the petition fails to state a cause of action or shows on its face that the petitioner is not entitled to the relief sought, it is subject to a motion to dismiss. (Glenn v. People, 9 Ill.2d 335.) Assuming that the present petition alleges facts which would otherwise justify the granting of relief, the absence of any excuse for not asserting them in apt time must preclude it. The rule is well established that a person may not avail himself of the present remedy unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. ...


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