Appeal from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Reversed and remanded with
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
This is an appeal from a default order and judgment for $25,000 entered upon a jury verdict after an ex parte hearing, and the order denying defendant's petition to vacate the default and the judgment.
The only issue presented is whether the trial court erred in denying defendant Reichhold's petition to vacate the default order and judgment under Section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72). *fn1
A motion to vacate a judgment under Section 72 of the Civil Practice Act is governed by the principle enunciated in Elfman v. Evanston Bus Co., 27 Ill.2d 609, at page 613, 190 N.E.2d 348:
Since our decision in Ellman v. De Ruiter, 412 Ill. 285, subsequently adopted by the legislature (Laws of 1955, p 2270,) it has become certain that a petition filed under section 72, such as we have here, invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances.
The petition to vacate alleged that defendant had a meritorious defense, that the accident was caused solely by the negligence of Ronald F. Robinson, a co-defendant, and that defendant's failure to appear and assert a defense was without negligence.
In an affidavit filed in support of the petition, defendant Reichhold's truck driver Sterling F. Peel stated:
I was driving north on Route 36 about 2 miles east of Winchester, Ill. and was starting up a hill when a 1959 Chevrolet passed two cars following my unit and was almost around me when the Chevrolet sideswiped a southbound car driven by Ruth Stehman. . . . The force of the impact between the Robinson car and the Stehman car spun the Stehman car around and it hit the left front of my tractor.
I was almost stopped at the time I was hit. I was moving about 3 to 5 mph when hit. The Robinson car was doing 85 in my opinion . . . . the Stehman car was well within the speed limit. . . . There was no contact between my unit and the Robinson car.
There was four boys in the Robinson car and I understand they were going to a basketball game.
The Illinois State Police investigated and Robinson was charged with improper passing.
The Traffic Accident Report of Trooper Ryan, filed in support of the petition, corroborated Peel's account of the accident.
Plaintiff did not deny the facts of the defense in either her answer to the petition or in the brief submitted with this appeal. Therefore, the defense must be taken as true, Dann v. Gumbiner, 29 Ill. App.2d 374, 379, 173 N.E.2d 525; Elfman v. Evanston Bus Co., 27 Ill.2d 609, 610, 190 N.E.2d 348. We hold that the petition shows a meritorious defense to the action.
Defendant urges that since it has shown a meritorious defense, it is only fair and just under all the circumstances of the instant ...