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Neiman v. City of Chicago

OCTOBER 3, 1962.

PEARL NEIMAN AND TILVA PAULL, APPELLANTS,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, APPELLEE. EDNA RIPSTEIN, APPELLANT,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, APPELLEE. PEARL NEIMAN AND TILVA PAULL, AND EDNA RIPSTEIN, APPELLEES AND CROSS APPELLANTS,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, APPELLANT AND CROSS APPELLEE.



Consolidated Appeals from the Circuit Court of Cook County; the Hon. WILLIAM J. WIMBISCUS, Judge, presiding. Affirmed in part, reversed in part, and original judgment of the trial court reinstated.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This court allowed petitions for leave to appeal from an order granting a new trial in the suits of Edna Ripstein v. City of Chicago and Pearl Neiman and Tilva Paull v. City of Chicago. The petitions, filed in accordance with section 77(2) of the Civil Practice Act, were based on the ground that the order of the trial court granting a new trial is void.

The case grew out of an accident caused by a collision of two automobiles. One automobile was owned and operated by William Paull. Samuel and Edna Ripstein, Benjamin and Pearl Neiman, and Tilva Paull were passengers in that automobile. Paull was driving in a northeasterly direction on Ogden Avenue in the City of Chicago, and as he entered the intersection at Lincoln Avenue his vehicle was struck by a car driven by Tom H. Kimura. Edna Ripstein filed suit in the Superior Court of Cook County August 18, 1954 against Tom H. Kimura and the City of Chicago for personal injuries sustained in the accident. On motion of Kimura the court on June 1, 1960 transferred the case to the Circuit Court of Cook County so that it might be consolidated with a case pending there. The Circuit Court case was brought by Pearl Neiman and Tilva Paull, who were also passengers in the Paull car. They filed suit for personal injuries against Kimura and the City of Chicago.

In both suits it was alleged as a basis for the suits against the City of Chicago that the city had installed traffic signals at the intersection where the collision occurred but that on the day of the occurrence in question the signals were not in proper working order due to the negligence of the City of Chicago, and that as a proximate result the collision occurred. The two cases were consolidated for purpose of trial.

In the original Circuit Court case Benjamin Neiman and William Paull were also plaintiffs. In the Superior Court case Samuel Ripstein was a plaintiff. On October 10, 1960 an order was entered dismissing Samuel Ripstein and Tom H. Kimura, and on the same date Benjamin Neiman and William Paull took a non-suit as to the City of Chicago.

On October 14, 1960 the jury returned separate verdicts for the plaintiffs against the City of Chicago in the following amounts: Edna Ripstein, $75,000; Pearl Neiman, $35,000; Tilva Paull, $4,000. The court forthwith entered judgment on each of these verdicts.

On October 19, 1960 the City of Chicago, hereinafter referred to as defendant, mailed a "Notice of Motion" to the plaintiffs. The notice stated that on November 2, 1960 the defendant would appear before the trial judge and move the court to set aside the verdict, vacate the judgment, and enter judgment in favor of the defendant, or in the alternative grant a new trial. The notice further stated: "A petition in support of this motion will be served on you before November 2, 1960." It is admitted that the first draft of the petition was not served on the plaintiffs until November 18, 1960. The notice fails to disclose any intention on the part of the defendant to request an extension of time to file the post-trial motion or to "refile" the motion at a later date. The only written instrument in the record which bears the filing date of November 2, 1960 is the following order: "Motion of Def. City to set aside the verdict or for other relief is entered and continued for hearing on Nov. 21st, 1960 at 2 p.m."

A post-trial motion was filed by the defendant on November 21, 1960. That motion moved the court to vacate the judgment on the verdicts and to enter judgment for the defendant or in the alternative to grant a new trial for the reason that the verdicts were against the weight of the evidence. Certain evidentiary errors were asserted, and it was further asserted that the damages assessed by the jury in favor of Edna Ripstein, Pearl Neiman and Tilva Paull were in each case excessive. Further errors were alleged as to the court's rulings on defense objections and instructions.

On December 14, 1960 the defendant filed a petition in the Circuit Court. In that petition it was alleged that on October 14, 1960 the trial court had entered judgment on the verdicts for the plaintiffs against the defendant; that on November 2, 1960, pursuant to notice duly served, the defendant appeared before the court to file and have heard its post-trial motion, and that the post-trial motion "now on file bearing date of November 21, 1960, did actually come into the physical control and custody of the Deputy Clerk of the Court, Martin Stein, in the presence of the Court for the purpose of filing and was thus filed on that date, and that said Deputy Clerk, Martin Stein, omitted to stamp the Post Trial Motion `filed November 2, 1960'"; that counsel for the plaintiffs asked the trial judge that the motion be entered and continued to November 21, 1960 to accommodate one of counsel for plaintiffs who was unable to be present to argue the motion on November 2nd; that counsel for the defendant requested leave of the court to take the motion back to his office to bind it and affix a blue back thereon, and to refile the same at the hearing on November 21, 1960; that "thereupon, the Court did orally order said motion entered and continued to November 21, 1960, for hearing and extended the time to refile said motion on said date, and further directed counsel for the defendant to prepare for the Court's signature a written order to that effect." (Italics ours.) It was further alleged that counsel for the defendant had inadvertently omitted from the written order prepared by him and presented to the court the extension of the time to "refile" said motion on November 21, 1960 as ordered by the court; and that counsel for the defendant did "refile on November 21, 1960 the Post Trial Motion. . . ." (Italics ours.) In the petition the defendant prays that the court enter its order nunc pro tunc as of November 2, 1960 amending the orders of that date by adding at the end a paragraph to provide that the defendant be granted "an extension of time to November 21, 1960, to refile with this Court its Post Trial Motion," and in the alternative the defendant prays that the court enter an order finding that the post-trial motion of the defendant was filed on November 2, 1960 and that the court order the clerk of the court to stamp the motion as filed on that date. (Italics ours.)

Edna Ripstein filed an answer to the defendant's petition on December 21, 1960. In that answer she admits that her attorney on October 20, 1960 received a copy of the notice; that no petition of any kind was served upon her counsel before November 2, 1960; that an employee of her counsel had attended the proceedings on November 2nd in the trial court, but she denies that her counsel asked the trial judge to enter any motion or to continue any motion for the purpose of accommodating counsel for any of the plaintiffs. She further asserts that the post-trial motion was not filed on November 2, 1960, and that there is nothing in the record showing any order of the court, oral or written, extending the time for filing the post-trial motion more than thirty days after the entry of the judgment. The answer further denies that counsel for defendant did "refile" on November 21, 1960 the post-trial motion in compliance with the order of the trial court, and states that no order to that effect was made, that the post-trial motion had not been "filed" within the statutory period, and that there could be no "refiling" of a document which had never been filed. The answer further stated that on November 18, 1960, for the first time, plaintiff through her counsel was served with a copy of the post-trial motion and that three days later, for the first time, a post-trial motion was filed with the clerk of the trial court. It is further alleged in the answer that the relief sought by the defendant, an order amending the order of November 2, 1960 nunc pro tunc to show an extension of time to November 21, 1960 to "refile" with the court its post-trial motion, would be improper since on November 2, 1960 no post-trial motion had been filed, and that the relief sought by the defendant in the alternative, an order directing the clerk to stamp the post-trial motion as filed on November 2nd, is not in accordance with the uncontroverted facts since the post-trial motion was not filed on November 2nd.

On December 14, 1960 attorneys for the plaintiffs Edna Ripstein, Pearl Neiman and Tilva Paull, as well as attorneys for the defendant, appeared in the trial court. In that hearing counsel for the defendant stated that he was presenting to counsel for plaintiffs a revised petition which differs from the original petition served with the notice, in that certain representations in the original petition with reference to the misfeasance of the deputy clerk of the court have been eliminated. During argument counsel for Neiman and Paull stated that he received a letter bearing date of November 17, 1960, from the assistant corporation counsel representing the defendant, which said: "Enclosed please find copy of Post Trial Motion of City of Chicago in above mentioned case. As you know, the hearing on the motion has been set for November 21, 1960. . . ." Counsel for Neiman and Paull further stated that there was enclosed a document marked "Post-trial motion"; that on November 21, 1960 he received a letter from the defendant bearing date of November 21, 1960 which stated that due to a clerical error in its office pages 15 through 18 of the post-trial motion have been incorrectly assembled, and the letter contained the further statement: "Will you kindly substitute the enclosed pages, numbered 15 through 20, for the pages you have in your hands presently, numbered 15 through 18." An assistant corporation counsel of the defendant stated that on November 2, 1960 he had handed the post-trial motion to the clerk. Another counsel for the defendant stated: "We are not contending here that any motion was filed before — on November 21, a motion was filed. We are here seeking an order to bring that motion within the statute, seeking an order extending the time to November 21 for the filing of that motion. It is our contention that that is what the order should have read. . . ." the following discussion then took place:

"Mr. Corboy [attorney for plaintiff Edna Ripstein]: Let me ask this in all seriousness and all courtesy: Was your motion filed within the statutory period?

"Mr. Berc [an assistant corporation counsel]: Yes, if this order is entered.

"Mr. Corboy: As of right now?

"Mr. Berc: Yes, as extended by the Court.

"Mr. Corboy: Let the record speak for itself. It was not. I am not asking for the relief you are seeking. I am asking as of right now.

"Mr. Berc: You said November 21, 1960.

"Mr. Corboy: What would have been the ...


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