Appeal from the Municipal Court of Chicago; the Hon. DANIEL J.
McNAMARA, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 23, 1961.
A default judgment was entered in the Municipal Court of Chicago in favor of William D. Boyle, hereafter referred to as the plaintiff, against Veterans Hauling Line, John A. Murphy, and Joseph Pantaleo, individually and doing business as Veterans Hauling Line, hereafter referred to as defendants. More than thirty days after the judgment was entered the trial court vacated the judgment on a petition filed under the provisions of section 72 of rule 1 of the Municipal Court of Chicago.
On October 19, 1959 the plaintiff filed in the Municipal Court of Chicago a suit growing out of an automobile accident. The statement of claim sought recovery for property damage and personal injury. On the return date, November 9th, the defendants having failed to file their appearance, a default was entered against each of them, and on November 30, 1959 the court, after a hearing, entered judgment against the defendants for $5,000. On January 13, 1960 the defendants filed a petition to vacate the judgment, which petition was supported by the affidavit of defendant Pantaleo. On January 29, 1960 the trial judge vacated the judgment, from which order this appeal is taken.
The theory of the plaintiff set out in his brief is that defendants' petition to vacate the judgment and supporting affidavit were insufficient inasmuch as "in their motion and affidavit, the defendants allege they were diligent and that they had a meritorious defense to the plaintiff's complaint. No facts were pleaded to support these allegations. They were mere conclusions of the pleader and as such, were insufficient in law to authorize the court to vacate the judgment."
Section 72 of rule 1 of the Municipal Court of Chicago is almost identical with section 72 of the Practice Act, and the procedure under the Municipal Court rule is governed by the same rules of law applicable to section 72 of the Practice Act. Frederick v. Maggio, 23 Ill. App.2d 292, 162 N.E.2d 590. Section 72 of the Practice Act, as adopted in 1933, in regard to the writ of error coram nobis was substantially the same as section 89 of the former Practice Act, which had provided only for a motion to replace the writ of error coram nobis. Our courts held that the motion brought under section 89 of the Practice Act was in its nature the commencement of a new suit, upon which issues must be made up, and there must be a finding and a judgment. Smyth v. Fargo, 307 Ill. 300, 304, 138 N.E. 610. Any question as to the sufficiency of the motion could only be raised by a demurrer, and if a plea on the merits was filed to the motion, all questions as to its sufficiency were thereby waived. Smyth v. Fargo, supra. It was held that section 21 of the Municipal Court Act, which is supplanted by section 72 of rule 1 of the Municipal Court, was governed by the same procedure. People v. Green, 355 Ill. 468, 474, 189 N.E. 500; Central Bond & Mortgage Co. v. Roeser, 323 Ill. 90, 95, 153 N.E. 732. It was further held that the question of the sufficiency of the motion could not be raised on review except where the question of its sufficiency had been properly preserved in the trial court. Smyth v. Fargo, supra. After the adoption of the Practice Act of 1933 the same procedural rules were considered applicable thereto. Calkin v. Roberts Park Fire Protection Dist., 402 Ill. 579, 84 N.E.2d 841 (1949); McSwain v. Nash, 331 Ill. App. 175, 72 N.E.2d 717 (Abst., 1947); and People v. Miles, 292 Ill. App. 430, 432, 11 N.E.2d 621 (1937).
[2-5] When the Civil Practice Act was revised in 1955, section 72 proposed by the Joint Committee of the Illinois State and Chicago Bar Associations provided: "The petition shall be filed in the case as part of the same proceeding in which the order, judgment or decree was entered." In the comments referring to that section the committee stated that the purpose of the change in the Act was designed to make it clear that the petition is not a new action but a continuation of the prior proceeding. However, the provision as adopted states: "The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof." Therefore, the interpretation of section 72 of the 1933 Act, to the effect that a petition filed thereunder is in its nature a new suit, is also applicable to the Act as revised in 1955 and effective January 1, 1956, and consequently to section 72 of rule 1 of the Municipal Court of Chicago. Unless the question of the sufficiency of the petition is properly preserved and brought to the attention of the trial court by a motion to strike and a ruling thereon, it is not available for consideration in a court of review.
The plaintiff here complains first that the petitioners failed to set up in their petition a meritorious defense. A mere statement that there is such a defense has been held to be insufficient. 23 I.L.P. Judgments, sec. 220. The plaintiff did not file a motion to strike. Through his attorneys he filed an answer to the petition, in which he denied the allegation with reference to a meritorious defense, and he further stated that the defendants have admitted liability.
In the affidavit of Pantaleo he stated that the affiant had a meritorious defense and that the total damage suffered by the plaintiff was less than $200. The plaintiff did not file a counteraffidavit, but in his answer he denied that statement in Pantaleo's affidavit. The plaintiff contends that it would be necessary for the defendants to show the basis of the allegation that the damage was less than $200. Under the law the question of the sufficiency of the petition and affidavit is not before us, but had it been, it might have been argued that the affidavit and petition raised a factual issue as to damages.
The trial court entered an order sustaining the petition of the defendants to vacate the judgment, and in that order the trial court stated that the cause came on for hearing and the court was fully advised in the premises. Even if we had the right to consider the question as to whether or not the statement as contained in the affidavit of Pantaleo was sufficient, under the law it must be presumed, inasmuch as the record before us does not contain a transcript of the proceedings at the hearing before the trial court on the petition to vacate the judgment, that the court acted in conformity to law and had before it sufficient either in the way of admissions or otherwise to properly enter the order.
The second question raised by the plaintiff is as to whether or not the petition and affidavit were sufficient to show that the failure of the defendants to appear and defend the case was excusable. In Reid v. Chicago Rys. Co., 231 Ill. App. 58, the court holds that where the petition was answered all objections to the sufficiency of the petition were waived except the objection that the petition is so defective that it will not sustain the order of the court, citing in support of that rule Pittsburgh, C.C., & St. L.R. Co. v. Robson, 204 Ill. 254, 265, 68 N.E. 468. It is undoubtedly true that prior to the decision of the Supreme Court in Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350, it might have been urged that the petition and affidavit would not support the court's order inasmuch as it requires the exercise of the equitable power of the court.
Pantaleo in his affidavit states facts to support the allegation of diligence. It was stated that he, upon receipt of the summons in the case, turned it over to his insurance broker, who then turned the same over to the Mid-Union Indemnity Company, which company had insured the defendants, and that by the terms of the defendants' insurance policy the insurance company assumed the duty of defending them in case of an automobile accident involving one of their vehicles. On August 31, 1959, in the Circuit Court of Kane County, Illinois, an order was entered directing the Director of the Department of Insurance of the State of Illinois to take possession of the assets of the Mid-Union Indemnity Company for the purpose of rehabilitation. The affiant alleges that this fact was not known to him when he gave the summons to the insurance broker nor was he informed about the judgment until his bank account was garnisheed. He further states that he had not been advised by the insurance company that it would not defend the cause of action which had been filed against him.
The plaintiff in his answer denies the allegation of Pantaleo with reference to turning the summons over to his insurance broker, who in turn gave it to the insurance company. An affidavit of one of the attorneys for the plaintiff was filed in the proceedings. In that affidavit he states that he had on November 13, 1959 been called by Pantaleo's insurance broker and told that the insurance company was in financial trouble and was under supervision of the Department of Insurance. The attorney stated that he had told the broker that a lawsuit had been filed and that no appearance or answer had been filed thereto; that the broker told him he would call him again, and on December 15, 1959 he was again called by the broker who told him that he had received authority from the insurance company to adjust the matter; and that at that time he informed the broker that a judgment had been entered.
Again, in default of a transcript of the proceedings at the hearing we must assume that the court had proof before it sufficient to support the allegations of the defendants with reference to Pantaleo's giving the summons to his broker and the latter's turning it over to the insurance company. The affidavit of the attorney for the plaintiff generally supports such contention inasmuch as he states that the broker informed him of the financial condition ...