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Oak Park Nat. Bank v. Peoples Gas Light & Coke Co

FEBRUARY 26, 1964.

OAK PARK NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE UNDER ITS TRUST NUMBER 2451, APPELLEE AND CROSS-APPELLANT,

v.

PEOPLES GAS LIGHT AND COKE CO., AND CONTRACTING AND MATERIAL COMPANY, APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding. Affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

A judgment in favor of Peoples Gas Light and Coke Co. and Contracting and Material Company, defendants, was entered in the Circuit Court of Cook County on September 2, 1961. Oak Park National Bank, the plaintiff, petitioned to vacate the judgment. After hearing on February 18, 1963, the trial court entered such an order and the judgment was vacated. From that order this appeal is taken.

The case grew out of a suit brought by the plaintiff against the defendants, alleging that certain property of the plaintiff's was damaged because of negligent construction work engaged in by the defendants. The plaintiff filed its complaint on April 7, 1961, and the defendants filed an answer on May 12, 1961. The defendants in this court state that they raise no point with reference to the sufficiency of the original complaint. The defendants have taken this appeal from that portion of the order of the trial court which vacates the judgment and replaces the case on the trial calendar. The plaintiff has filed a cross-appeal which we will discuss later.

The question before us depends on an interpretation of the Supreme Court Rules involving the sanctions to be imposed upon recalcitrant litigants who fail to answer interrogatories which have been submitted to them. The Act establishing the Municipal Court of Chicago in 1905 contained a provision allowing the court to permit the filing of interrogatories by any party to a lawsuit; and it further provided that the court might by order require that such interrogatories be answered under oath. In Assets Adjustment Co. v. Atkinson, Mentzer & Grover, 180 Ill. App. 296, this section of the Municipal Court Act was brought before the court. In that case the defendant, after it had filed an affidavit of merits, was required by order of the court to answer interrogatories within a certain time. The defendant failed to comply with the order of the court and thereupon the court entered judgment on plaintiff's statement of claim as by default. In its opinion the court stated that the record did not show that the affidavit of defense had been stricken from the files, but whether it had been or not was immaterial since the trial court, under the rule, had no right to enter judgment. Accordingly, it was held that the defendant could not be deprived of his right to be heard on the issues raised by the affidavit of defense merely because of his contumacy in disobeying an order not directly related to such pleadings or the issues raised thereby. The court cited as its authority Walter Cabinet Co. v. Russell, 250 Ill. 416, 95 N.E. 462.

In the Russell case, decided in 1911, an order was entered in the Municipal Court of Chicago, requiring that the plaintiff produce on a certain day certain papers and books in its possession for the inspection of the defendant. The defendant, after the date fixed by the court, filed a motion to strike, supported by an affidavit in which he alleged that the plaintiff had failed to comply with the order of the court. The trial court sustained the motion and ordered that the plaintiff's statement of claim be stricken from the files and that judgment be entered in favor of the defendant upon a setoff which he had filed in the case. On appeal the court pointed out that statutes then in force provided that the court may require parties to produce books or writings in their possession which contain evidence pertinent to the issue, and held that the trial court had no authority to strike plaintiff's statement of claim and enter judgment against it. When a party disobeys an order of the court the court may punish him for contempt, but may not deprive him of his civil rights or take his property and give it to another. The court said that ". . . it is a principle of fundamental justice that, however plenary may be the power to punish for contempt, no court, having obtained jurisdiction of a defendant, may refuse to allow him to answer, refuse to consider his evidence and condemn him without a hearing because he is in contempt of court." It was further pointed out that in states where the striking of a party's pleading from the files and the entry of a judgment by default upon failure to comply with an order for the production of evidence have been sustained, such actions have been authorized by an express statute.

In the revision of the Civil Practice Act in 1955, section 58 as it now stands in the Act was adopted. It provides: "Discovery and depositions. (1) Discovery, admissions of fact and of genuineness of documents and answers to interrogatories shall be in accordance with rules." In the Joint Committee Comments to Supreme Court Rule 101.19-11, Smith-Hurd Illinois Annotated Statutes, the following statement is made:

"Prior to its amendment, section 58(2) of the Civil Practice Act provided, inter alia, that `answers to written interrogatories may be required of any other party,' under terms and conditions to be prescribed by rules. However, with isolated exceptions, e.g., Circuit Court of Cook County Rule 20 1/2 (see Boettcher v. Howard Engraving Co., 389 Ill. 75, 58 N.E.2d 866

), no interrogatory procedure was prescribed by rules. New rule 19-11 is designed to supply this deficiency in the former practice."

Boettcher v. Howard Engraving Co., 389 Ill. 75, 58 N.E.2d 866, was a case where the trial court, after the defendant had failed to comply with an order of the trial court that he answer certain interrogatories, adjudged that the defendant was in default and entered a judgment against him. At that time there was no rule of the Illinois Supreme Court imposing sanctions for failure to answer interrogatories, but the rule of the Superior Court of Cook County provided that the court, upon failure of the party to answer interrogatories as ordered, could enter a judgment by default. The Supreme Court held that the judgment was improperly entered and said, "There is no statutory provision that a judgment may be entered for failure to answer interrogatories, and in the absence of such a statute the power does not exist." The court cites Walter Cabinet Co. v. Russell, supra.

The Supreme Court, in accordance with a directive in the Practice Act, provided in Rule 101.19-12, Smith-Hurd Annotated Statutes, that:

"(3) Failure to Comply with Order or Rules.

"If a party, or any person at the instance of or by collusion with a party, unreasonably refuses to comply with any provision of Rules 17 to 19-12, both inclusive, or Rule 22, or fails to comply with any order entered under said rules, the court may, on motion, in addition to remedies elsewhere specifically provided, order one or more of the following, as may be appropriate: that the party be nonsuited; that his complaint be dismissed; that all or any part of his pleadings be stricken and judgment rendered on the remaining pleadings in the case; that he be debarred from filing any other pleading; that he be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense respecting which discovery is sought; or that further proceedings be stayed pending compliance. In lieu of or in addition to the foregoing, the court may by contempt proceedings compel obedience by any party or person to any subpoena issued or order entered under said rules."

In the instant case the defendants had served certain interrogatories upon the plaintiff. The plaintiff had failed to answer same. *fn1 On September 14, 1961, a notice was served upon the attorneys for the plaintiff that a motion ...


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