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Elfman v. Evanston Bus Co.

AUGUST 6, 1962.

SARAH ELFMAN, PLAINTIFF-APPELLEE,

v.

EVANSTON BUS COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Municipal Court of Evanston; the Hon. HARRY H. PORTER, Judge, presiding. Affirmed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 6, 1962.

Defendant appeals from an order striking and dismissing its petition, filed under Section 72 of the Civil Practice Act, to vacate a default judgment.

On March 7, 1960 plaintiff filed her statement of claim against defendant, Evanston Bus Company, and Wanzer Dairy Company seeking damages for personal injuries sustained by her on September 6, 1958 while a passenger on defendant's bus at the time of a collision between the bus and a Wanzer milk truck. Plaintiff demanded a jury.

Both defendants were duly served with summons returnable March 22, 1960. On that date, an order of default was entered against both defendants for failure to appear.

On stipulation of plaintiff and Wanzer, the default order against Wanzer was vacated by court order on April 23, 1960 and Wanzer was permitted to file its appearance and answer instanter. The same order provided that "this cause be and the same hereby is postponed and set for pretrial conference on July 22, 1960."

By further stipulation of plaintiff, and on her motion, an order was entered on May 18, 1960 dismissing the cause as to Wanzer. Wanzer is, therefore, not concerned with this appeal.

On the same day, the cause as to defendant, Evanston Bus Company, was submitted to a jury. After hearing evidence and argument of plaintiff's counsel, defendant being absent, a verdict was returned against defendant, assessing plaintiff's damages at $10,000. Judgment was entered on the verdict.

Execution was served on defendant on June 20, 1960, and on July 14, 1960 defendant filed its petition to vacate the judgment. Later, through the substituted attorney who is now representing defendant in this court, an amended petition and amendments thereto were filed. Plaintiff filed her motion to strike and dismiss, and, after hearing, the order appealed from was entered on March 6, 1961.

Before coming to the questions arising from Section 72, defendant argues that at the time of the ex parte jury trial there was no default order against defendant, and that, therefore, the court was without authority to proceed as it did. This point rests on the proposition that the order of March 22 defaulted both defendants as a unit, and that the order of April 23 consequently vacated the default as to both defendants, requiring a new order of default against Evanston Bus Company if that defendant were to be effectively defaulted.

We find no validity in this argument. The language of the court was that "the order of default heretofore entered against Wanzer Dairy Co. on March 22, 1960 be and the same hereby is vacated." These words are clear and unambiguous. The applicability of the order to one, and not both, of the defendants is unmistakably authorized by Section 50(7) of the Civil Practice Act. *fn1 Furthermore, this point was not raised in the trial court, and, therefore, cannot be used by this court as a ground for reversal.

Defendant's amended petition and the two amendments thereto are, in combination, complete in themselves, and supersede the original petition. In our consideration of the sufficiency of defendant's pleading, we shall, therefore, disregard the original petition and answer, and the parts of plaintiff's arguments which are based thereon. (W.P. Iverson & Co., Inc. v. Dunham Mfg. Co., 18 Ill. App.2d 404, 425, 152 N.E.2d 615; Riddle v. Riddle, 23 Ill. App.2d 260, 161 N.E.2d 866.)

The issue of the legal sufficiency of defendant's petition was properly raised by the filing of a motion to strike (Boyle v. Veterans Hauling Line, 29 Ill. App.2d 235, 239, 172 N.E.2d 512) and such a motion must be taken to have admitted all well-pleaded ...


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