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Selvaggio v. Kickert School Bus Line

FEBRUARY 27, 1964.

NICK SELVAGGIO, ADMINISTRATOR OF THE ESTATE OF NICK A. SELVAGGIO, PLAINTIFF-APPELLEE,

v.

KICKERT SCHOOL BUS LINE, INC., AND BETTY JANE HOLMAN, DEFENDANTS-APPELLANTS.



Appeal from the City Court of Chicago Heights; the Hon. CARL W. McGEHEE, Judge, presiding. Order reversed with instructions.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

The defendants in this case filed an amended petition under section 72 of the Civil Practice Act praying that the order striking defendants' answer and the judgment entered by default against them be vacated and set aside.

This was an action commenced on April 18, 1961 in the City Court of Chicago Heights to recover damages for wrongful death of plaintiff's intestate. After the defendants had appeared and answered, their answer was stricken by order of the trial court. The case was then tried as a default matter by the court without a jury and a judgment was entered in favor of the plaintiff for $30,000 on January 13, 1962.

On March 3, 1962, the defendants served notice, together with a copy of petition under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72), supporting affidavit with proof of service and memorandum of authorities, upon the attorney for the plaintiff, and filed the said papers in the office of the clerk of said court. On April 5, 1962 the defendants filed in the office of the clerk of said court a verified amended petition under section 72 of the Civil Practice Act, and supporting affidavit with proof of service, leave of court having been granted on March 15, 1962, to defendants to file the same. The amended petition prayed that the orders heretofore entered striking the defendants' pleadings, setting the cause for prove up and entering an ex parte judgment in favor of the plaintiff, be set aside, vacated and held for naught.

The material allegations of the amended petition are as follows:

The plaintiff filed a demand for trial by jury with his complaint on April 18, 1961. Thereafter the defendants entered their appearances with Voigt, Nordstrand and Rago and R.J. Heilgeist as their attorneys; that an answer was filed to the complaint categorically denying each and every allegation of negligence and liability on the part of the defendants.

That the case was set for pretrial in the City Court of Chicago Heights on December 8, 1961; that on December 8, 1961 Robert J. Heilgeist, one of the attorneys of record, while driving to Chicago Heights to attend said pretrial, realized that he would be late and made a telephone call shortly after 10:00 a.m. to the clerk of said court to request that the pretrial be held until he arrived; that the telephone call was answered by a woman who advised Heilgeist that it would be unnecessary for him to attend as the case had been removed from the pretrial calendar to be placed on the trial calendar; that Heilgeist returned to his office; that without notice to the defendants, and notwithstanding the representation of the clerk, an order was entered on December 8, 1961 striking defendants' answer, prohibiting defendants from filing any further pleadings, and setting the case for January 11, 1962 at 10:00 a.m. for prove up. That there was filed of record in the office of the clerk of the City Court of Chicago Heights a certain notice addressed to Voigt, Nordstrand and Rago and R.J. Heilgeist, attorneys for defendants, advising them that on December 14, 1961, at 9:30 a.m. the plaintiff would appear before Judge McGehee and present a motion to strike; that the motion to strike requested the entry of an order striking defendants' pleadings and to set the cause for prove up of plaintiff's damages, to be heard as a default matter.

The amended petition further states that the notice of said motion was not received by the defendants or their attorneys, and notice of the default or order striking defendants' answer and setting the cause for default and prove up, was not received by the defendants or their attorneys, or anyone on their behalf, and that neither the defendants nor their attorneys had any notice of the entry of said order of December 8, 1961, or had any knowledge of any default or that judgment had been entered until March 1, 1962; that it appears of record that on January 11, 1962 there was a prove up by default against the defendants and that on January 13, 1962 judgment was entered by default in favor of the plaintiff in the sum of $30,000; that the judgment order recited that the plaintiff, by his attorney, waived trial by jury; that said waiver was without notice to the defendants or their attorneys, and that no notice was given by the clerk of the court of the entry of the default judgment, in accordance with section 50.1 of the Illinois Civil Practice Act; that no execution had been ordered or issued against the defendants; that the entry of the judgment of January 13, 1962 was first discovered by a representative of the office of Albert M. Howard, attorney, who was appearing in said court on pretrial on another case, and who had checked the records of the clerk of the court in the instant case. That as a meritorious defense, the amended petition stated that the petitioners believed that they had a good and meritorious defense to the whole of the plaintiff's case, in that it appears from the investigation made on behalf of the defendants that the defendants were not guilty of the negligence alleged in plaintiff's complaint, or any negligence whatever; that the plaintiff's intestate was guilty of contributory negligence, and that the judgment of $30,000 is grossly excessive.

The affidavit of Robert J. Heilgeist in support of the amended petition to vacate the default judgment was filed with the amended petition. His affidavit is substantially the same as the matters set forth in the amended petition with the following additions: That in the regular and ordinary course of business all notices received by attorneys of record for defendants in the instant case prior to March 1, 1962 were directed to him and upon receipt of any notices he would have caused such to be noted in his diary and in the case file kept by him; that from the time of his telephone conversation with the office of the clerk of the court until the present time (4th day of April, A.D. 1962) he had not received any notices from either the court or from plaintiff's counsel other than a notice setting the case for pretrial conference; that no notice was received by him or the attorneys of record for the defendants of a motion or order or any proceeding to strike defendants' pleadings, or the entry of a default judgment, or to set the case for prove up, or that the plaintiff intended to waive trial by jury; that he believes that the defendants have a good and meritorious defense to the whole of the plaintiff's case, and he positively stated that the defendants were not guilty of any actionable negligence, and that the plaintiff's intestate was guilty of contributory negligence.

The plaintiff filed an answer to the amended petition wherein he admitted many of the allegations and denied others. In some instances he stated that he did not have sufficient information to answer the allegations and denied that the defendants were without notice of the motion to strike. Plaintiff did not answer the allegations in paragraph 19 of the amended petition which alleged that neither the defendants nor their attorneys had any knowledge of the entry of the judgment on January 13, 1962 until March 1, 1962. He denied the allegations concerning a good and meritorious defense alleged by the defendants.

Some question has been raised as to the date of the entry of the order striking defendants' answer and ordering that the defendants be debarred from filing any further pleadings in this matter. That order further set the matter for January 11, 1962 at 10:00 a.m. for a prove up of plaintiff's damages. The certificate of the clerk attached to the record shows the entry of that order on December 8, 1961. Also, the order on its face bears the City Court clerk's stamp showing that it was entered on December 8, 1961. Plaintiff contends that the order was entered on December 14, 1961. The significance of this contention is that the notice addressed to defendants' counsel stated that on the 14th day of December, A.D. 1961, plaintiff's attorney would appear before the court and present a motion to strike the pleadings of the defendants, and to further debar said defendants from filing any further pleadings. The affidavit attached to the notice states that a copy thereof was mailed to defendants' attorneys on the 8th day of December, 1961 at 6:00 p.m. The certificate of the clerk, likewise, shows that the notice and motion to strike were filed in the office of the clerk of the court on the 8th day of December, 1961, which is the same date, according to the record, that the order was entered striking defendants' answer and setting the case for January 11, 1962 for a prove up of plaintiff's damages.

The court record imports verity and that applies to dates of entry as well as in other respects. Jones v. City of Carterville, 340 Ill. App. 330, 91 N.E.2d 604; Anderson v. Anderson, 380 Ill. 435, 44 N.E.2d 54. In County Board of School Trustees of DuPage County v. Bendt, 30 Ill. App.2d 329, on page 333, 174 N.E.2d 404 the court said:

"It is basic in our law that it is the record in the trial court that we review. That record imports verity.

"`When properly authenticated the record filed for the purpose of appeal imports absolute verity, and is the sole, conclusive and unimpeachable evidence of proceedings in the lower Court.' ...


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