Appeal from the Superior Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Order reversed and cause remanded
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 2, 1964.
This is an appeal from an order entered on December 19, 1962 denying a petition to vacate a judgment by default. An ex parte judgment was entered against the defendant on October 22, 1962 in the amount of $10,000.
The principal question involved here is whether the court abused its discretion when it denied the motion to vacate the default judgment, which was entered against the defendant, when defendant's attorney was engaged in the trial of another case in the Federal District Court.
The relevant facts, taken from the defendant's petition filed on October 30, 1962 to vacate an ex parte judgment entered on October 22, 1962, the supporting affidavits, the answer by plaintiff's attorney to the petition, the affidavits in reply to the answer and the report of preliminary proceedings on the 22nd day of October, 1962, are these:
This case had been tried twice previous to the ex parte hearing and judgment. The first trial resulted in a judgment for the defendant which was reversed on appeal to the Appellate Court. The second trial resulted in a disagreement by the jury.
This was a personal injury action. The plaintiff had been bumped by the automobile of the defendant after the plaintiff ran from behind the stairway of the elevated tracks at the intersection of Wilton Avenue and Addison Street; the defendant never saw the plaintiff before the plaintiff ran from behind the stairway. At the time of contact the defendant's automobile was almost stopped. Plaintiff fell to a sitting position over the center line in Addison Street. The accident occurred at 9:30 p.m. A westbound car came in contact with plaintiff sitting in the street. The plaintiff walked to the drug store and at the hospital got out of the car without assistance and walked into the hospital. Two doctors who testified stated that they had examined the x-rays and that they showed no trauma other than everyday living.
The case which resulted in the disagreement by the jury commenced on October 11, 1962. The trial was concluded and the case went to the jury about 3:00 p.m. Thursday, October 18, 1962.
On October 18, 1962 the assignment judge for the Circuit and Superior Courts of Cook County assigned the case of Young v. Chicago Transit Authority, No. 55C 14755, to the trial judge for trial immediately upon the conclusion of the instant case. The case of Young v. Chicago Transit Authority, No. 55C 14755, went to trial before the trial judge on the morning of October 19, 1962.
At about 3:00 p.m. on Thursday, October 18, 1962, Reese Hubbard, the attorney who represented the defendant in the instant case in both previous trials, called Judge Richard B. Austin, Judge of the United States District Court, and informed Judge Austin that this case had gone to the jury and he was ready to go to trial in the case of Horvath v. Suster, No. 61C 763, a case being held by Judge Austin. Judge Austin informed Reese Hubbard he should consider himself on trial and to appear before him at the opening of court on Friday, October 19. The jury in the case before us, having failed to agree, was discharged at 12:00 p.m. October 18.
On the morning of October 19 the case of Young v. Chicago Transfer Authority, No. 55C 14755, went to trial before the trial judge. Walton Alexander, a clerk in the defendant's counsel's office, went to Judge Canel's courtroom to pick up defendant's exhibits, which the jury had returned to the clerk of the court. When he arrived at the courtroom at 9:30 a.m. the case of Young v. Chicago Transit Authority was on trial. Walton Alexander, who made one of the affidavits in support of the petition to vacate the judgment, stated that he informed the trial judge that Reese Hubbard was on trial in the Federal Court before Judge Austin. He further stated that the trial judge entered an order in this case reciting that the disagreement of the jury be spread of record, and that the case be called on Monday, October 22, 1962 for further disposition.
There is some dispute as to whether Mr. Alexander notified the trial judge on October 19, 1962 that Reese Hubbard was engaged in trial before Judge Austin in the Federal Court. The report of preliminary proceedings, filed November 7, 1962, contains the statement by the trial judge made on the morning of October 22, 1962 which related to what transpired on the morning of Friday, the 19th of October. He stated that in the presence of Mr. Alexander and Mr. Altman, the attorney for the plaintiff, he asked whether or not there was a possibility of a settlement, and that Mr. Alexander stated that if the judge would hold it over until Monday morning they would attempt to settle the matter. The judge further said at that time that if it was not settled by Monday morning he would hold the case for disposition and it would be settled or tried.
The report of preliminary proceedings showed that Reese Hubbard appeared on behalf of the defendant on the 22nd day of October, 1962. This is an error, which is obvious from the context of the report. Mr. Hubbard was not present nor was Mr. Alexander there to represent him. Mr. Alexander, however, had been in the court earlier on the morning of October 22 and had also been in the court on the morning of October 19. The judge stated on October 22, 1962 that Mr. Hubbard called and said he was engaged before Judge Austin and the trial judge advised him to have one of the lawyers in his office in court; that he was held for trial and he would have to go to trial today or send in one of the other lawyers in his office to try the case.
The affidavit of Walton Alexander, the clerk in Mr. Hubbard's office, stated that on the morning of October 19, at about 9:30 a.m., he went to the courtroom of the trial judge for the purpose of getting the defendant's exhibits, and at that time the trial judge was actually trying another case, and that the trial judge jokingly asked Alexander if the defendant's counsel in Ryan v. Monson would be ready to go to trial again in about fifteen minutes. His response to the judge was that Reese Hubbard was on trial before Judge Austin in the U.S. District Court. That on Monday, October 22, 1962 he again went to the trial judge's courtroom and the instant case was called about 9:20 a.m. The trial judge stated that the instant case would have to go to trial as soon as the case on trial ...