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Fulton St. Wholesale Market Co. v. Guggenheim

JUNE 22, 1964.

FULTON STREET WHOLESALE MARKET CO., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLEE,

v.

MELVIN GUGGENHEIM, DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLEE AND CROSS APPELLANT,

v.

SIMON ALPORT, THIRD PARTY DEFENDANT-APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. HARRY L. McCABE, Judge, presiding. Affirmed. MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

Rehearing denied August 3, 1964.

Third-party defendant, Simon Alport, appeals from a judgment entered against him and in favor of the plaintiff, Fulton Street Wholesale Market Company and defendant third-party plaintiff, Melvin Guggenheim. The defendant third-party plaintiff Melvin Guggenheim cross-appeals from a denial of his claim for special damages he sought from Alport.

On March 27, 1962 the plaintiff obtained a judgment by confession against defendant Guggenheim for $805.42 for rent due on a lease signed by Guggenheim and Alport as colessees.

On May 4, 1962 *fn1 Guggenheim filed motion to open up the judgment and for leave to plead to the merits. In the affidavit supporting his motion he admitted signing the lease as colessee with Alport for the premises at 833 W. Fulton Street, Chicago, beginning February 1, 1962 until January 31, 1963 at a monthly rental of $600. Prior to the execution of the lease, he had an oral understanding with Alport as to the sharing of the premises and proportionate payment of the rent. When he and his employees attempted to take possession in accordance with the lease, they were prevented from so doing by Alport who was already in possession under a prior lease. Defendant informed the plaintiff, through its president R.A. Sweeney, of Alport's action.

Guggenheim was a wholesale meat dealer. The custom and usage in the wholesale meat business and the nature of operations at the Fulton Street Wholesale Meat Market was for wholesale dealers to provide space and telephone facilities for their peddler-customers and for them to take orders which they would place with the dealers. One Patrick Culliane, a peddler and customer of Guggenheim, had been the former colessee with Alport in the premises under the lease expiring January 31, 1962. Guggenheim desired that Culliane have use of office space and telephone facilities in his alloted portion of the leased premises under the new lease. Alport objected to Culliane's contemplated use thereof. Sweeney, president of the plaintiff company, also informed Guggenheim that he did not want Culliane on the premises. Guggenheim wished to retain Culliane's business and alleged he was within his rights in providing Culliane with the use of the facilities. He charged Sweeney and Alport with a conspiracy designed to prevent his use of the premises and that this constituted an eviction and breach of the terms of the lease. He claimed that the fact that plaintiff accepted Alport's tender of $250 per month on the lease *fn2 and did not confess judgment against him, was evidence of such alleged conspiracy. He contended, therefore, that Alport was a necessary party to the proceedings and prayed summons issue against him as a third-party defendant.

On June 28, 1962 the court denied the motion to open the judgment and confirmed the same. The court further granted the defendant Guggenheim leave to file a third-party statement of claim and directed that summons issue as to Alport. All further proceedings on the judgment were stayed pending disposition of the third-party action.

On June 29, 1962 defendant, Guggenheim filed his third-party statement of claim against Alport containing substantially the same averments as were in his affidavit. He asked to be relieved of liability for the accrued and future rent under the lease or until Alport allowed him possession of the premises. The third-party statement of claim prayed special damages in the sum of $10,000 for breach of the contract resulting in loss of profits and for a declaration that Alport unlawfully withheld possession from him, and that Alport be ordered to surrender possession of the premises, or in the alternative, be declared liable in full on the lease.

Alport's answer to the third-party statement of claim admitted the padlocking, but alleged that the key was available to defendant third-party plaintiff Guggenheim upon request. He denied that Guggenheim or his employees were not allowed to enter the premises. He denied the conspiracy with the plaintiff but charged that the defendant third-party plaintiff Guggenheim conspired with Culliane to avoid the covenant of the lease against subleasing without consent of the landlord-plaintiff. A reply to the answer was filed and issues having been drawn, the cause was set for trial.

On January 31, 1963 the third-party action was heard by the court without a jury and taken under advisement. On February 19, 1963 a judgment in the amount of $4,305.42 was entered in favor of the defendant third-party plaintiff Guggenheim and against the third-party defendant, Alport. On March 12, 1963 the court entered a judgment order nunc pro tunc as of February 19, 1963, granting plaintiff Fulton Street Market leave to file instanter its amended statement of claim and ordering the answers of the other parties to stand as answers thereto. The court further entered judgment in favor of plaintiff Fulton Street Market against both defendant third-party plaintiff Guggenheim and third-party defendant Alport in the sum of $4,305.42. It provided that "this judgment order includes and supersedes the judgment order heretofore entered on March 27, 1962." And further the order provided that defendant third-party plaintiff Guggenheim have judgment against Alport for the sum of $4,305.42.

Plaintiff's amended statement of claim simply averred the subsequent facts and proceedings transpiring after the judgment by confession and prayed judgment on the lease against both lessees, Alport and Guggenheim, for the full amount, the term of the lease having now expired. It prayed that the previous $805.42 judgment be superseded by the final order.

It is Alport's contention that the trial court exceeded its jurisdiction and acted contrary to the rules of the Municipal Court of Chicago in allowing defendant third-party plaintiff Guggenheim to file his third-party statement of claim without first vacating or opening the judgment by confession, and thereby its action in this regard was null and void.

The determination of this question rests upon the application and interpretation of the rules of the Municipal Court then effective. The Municipal Court of Chicago having plenary powers, the Illinois Practice Act and section 2 thereof dealing with the rule-making power of the Supreme Court of Illinois, had no application to the case (Ptacek v. Coleman, 364 Ill. 618, 5 N.E.2d 467 (1936)). But to facilitate practice and procedure in the Municipal Court the judges thereof promulgated rules to conform as nearly as possible to the Civil Practice Act and the Supreme Court rules. Therefore, any references herein to sections of the Act and Supreme Court rules would also apply to the Municipal Court except as we may otherwise specify.

The provisions of the Civil Practice Act, Rules of Courts and judicial pronouncements have tended to relax the limitations upon actions. They lean toward a broader interpretation and practice as to who may be joined as parties and what the restrictions are as to issues and controversies in a single action.

In State Bank of Blue Island v. Kott, 323 Ill. App. 27, 54 N.E.2d 897 (1944) the trial court denied defendant's motion for leave to file a counterclaim to a judgment by confession. The reviewing court said at pages 28, 29: "The sole question for decision is whether the court erred in denying defendant's motion. Plaintiff contends that the general rule that a judgment by default or confession will not be set aside in the absence of a showing that the defendant has a defense on the merits is applicable here, and that under it a judgment will not be opened ...


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