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Robertson v. Western Bearings Co.

JUNE 29, 1964.

C.J. ROBERTSON, ET AL., D/B/A SOUTHEASTERN SKATE SUPPLY COMPANY, PLAINTIFFS-APPELLANTS,

v.

WESTERN BEARINGS COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. HAROLD G. WARD, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 17, 1964.

This is an appeal from an order dismissing plaintiffs' action for breach of contract for want of prosecution. Plaintiffs contend that the trial court abused its discretion in refusing to vacate its dismissal order on motion timely made.

The essential facts are not in dispute. The complaint was filed on May 21, 1959. Defendant's answer and jury demand were filed on June 26, 1959. Pretrial conferences were subsequently held, and on June 20, 1963, the cause was placed on the "Hold Call." Thereafter, on November 14, 1963, the clerk of the court, at the direction of the assignment judge, caused notice to be published in The Chicago Law Bulletin announcing that the instant case would be tried on November 29, 1963. The procedure followed in this regard was in conformity with the policy recommendation announced on January 25, 1963, in The Chicago Law Bulletin by the Supreme Court "Backlog Committee" relative to the "Hold Call," and which recommendation was approved by the Supreme Court. On November 29, 1963, the case was transferred to the trial call. "Plaintiffs' attorneys' docket clerk inadvertently failed to notice that the case was to be transferred to the trial call on that date and she consequently failed to advise the attorney handling the case and as a result, no response was made on plaintiffs' behalf when the case was called."

The court, on its own motion, on November 29, 1963, entered an order dismissing the cause for want of prosecution and notified plaintiffs' attorneys who, on December 10, 1963, presented a motion to vacate the order of dismissal and to reinstate the cause. The court denied this motion, and on December 16, 1963, plaintiffs' attorneys presented the same motion and, in addition, drew the court's attention to Wright v. Chicago Transit Authority, 43 Ill. App.2d 408, 193 N.E.2d 597 (1963). The court again denied the motion, and plaintiffs appeal from the dismissal order and from the orders denying the motions to vacate said dismissal order.

The record contains the questioned orders. The following is the text of the order of November 29, 1963:

"This cause coming on to be heard upon the regular call of cases for trial; IT IS HEREBY ORDERED that the above entitled cause be and the same is hereby dismissed for want of prosecution."

The motion to vacate presented by plaintiffs' counsel on December 10, 1963, is set forth below. The same motion was again presented on December 16, 1963:

"Now come the plaintiffs, C.J. Robertson, et al., by their attorneys, Stevenson, Conaghan, Hackbert, Rooks and Pitts, and move this honorable Court to vacate the order entered November 29, 1963 dismissing the above entitled cause for want of prosecution by reason of the fact that our docket clerk inadvertently failed to notice that this case was to come off the hold call on that date and she failed to advise the attorney handling the case and as a result, no response was made on our behalf."

The orders entered on December 10 and December 16, 1963, are substantially similar, and that of December 16 is set forth below:

"This matter coming on upon the motion of plaintiffs to vacate the dismissal for want of prosecution order entered 11/29/63 and the Court being fully apprised in the premises, IT IS HEREBY ORDERED that the motion be denied, cause having been called for trial from the automatic hold call."

At the outset, we agree with plaintiffs "that the legislature has taken great pains to make it clear that substance must prevail over form by an enactment of many years standing" (Ill. Rev Stats 1963, c 110, § 4), and the practice in this state has been liberal in setting aside defaults within term time, where it appears that justice will be promoted thereby. Mason v. McNamara, 57 Ill. 274, 277 (1870).

In Dann v. Gumbiner, 29 Ill. App.2d 374, 173 N.E.2d 525 (1961), this court said (p 379):

"The object is that justice be done between the parties, and one party is not permitted to obtain and retain an unjust advantage. The result obtained from the application of these rules depends upon the facts to which they are applied. The motion is addressed to the sound legal discretion of the court, and it is only where there is an abuse of discretion that a reviewing court will interfere. . . . Courts in this state are liberal in setting aside defaults during the term time in which they are entered, when it appears justice will be promoted. . . . `The power to set aside a default and permit a defendant to have ...


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