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Refiners Pet. v. White Water Pet. Terminals

SEPTEMBER 23, 1965.

REFINERS PETROLEUM, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLEE,

v.

WHITE WATER PETROLEUM TERMINALS, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County; the Hon. ROBERT E. McAULIFFE, Judge, presiding. Order reversed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This involves an appeal from an order of the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, vacating the dismissal of plaintiff's claim and vacating the judgment in favor of the defendant on a counterclaim. The petition was filed more than thirty days after the entry of the dismissal and judgment order.

The plaintiff was the owner of certain fuel oil which was stored in a tank owned by the defendant under a written lease for one year which provided for rental of 1/4 of one cent per gallon for each gallon of oil passing through the tank, with a guarantee of four (4) "thruputs" during the one year term of the lease. The defendant owned and leased the tank to the plaintiff. Plaintiff requested defendant to waive further rent during the term of the lease, which request was refused by the defendant. Thereupon, defendant and plaintiff entered into a written agreement whereby plaintiff would sell and defendant would purchase the remaining oil in the tank, which was estimated, at a fixed price per gallon. Plaintiff also agreed to pay the defendant the fixed rent in arrears and the lease would be terminated in mid-term without further liability of plaintiff for future rents. The purchase price of the oil was to be adjusted and an additional amount paid or refund made, dependent upon an inventory of oil in the tank to be made by Charles Martin & Co., an independent petroleum inspector. The defendant paid the plaintiff the purchase price based upon the estimated quantity of oil in the tank.

The plaintiff brought this action on October 31, 1960, claiming that there had been more oil in the tank than the quantity estimated or inventoried by Charles Martin & Co., and sued the defendant for the additional oil. Defendant denied plaintiff's claim and, based on the inventory of Charles Martin & Co., filed a counterclaim in three counts: first, claiming the balance of rent due for the remainder of the term as reduced by certain amounts recovered on re-renting the tank, on the theory that upon plaintiff's failure to carry out the agreement its liability for rent for the tank continued. The claim under this count amounted to $10,741.48. The second count of the counterclaim claimed a refund in the purchase price for the difference between the estimated quantity of oil purchased and the actual quantity shown by the Charles Martin & Co. inventory. This count sought recovery of $872.55. Count three of the counterclaim, as an alternative to the first and second counts, claimed the unpaid rental due under the lease to the time the oil was purchased and a refund for the difference between the estimated quantity of oil purchased and the actual quantity shown by the Charles Martin & Co. inventory. The amount claimed in this count was $1808.16.

The plaintiff filed a defense to the counterclaim of defendant and defendant thereafter filed a reply. All pleadings were filed by March 23, 1962. Thereafter there were thirteen delays in the trial, including five continuances, two defaults for want of prosecution, followed by two reinstatements of the case, and two delays caused by reassignment of the case to other courtrooms.

On January 10, 1964, the court set a final trial date, after vacating a default for want of prosecution. The case was set for trial on April 21, 1964. The stipulation between the parties to vacate the default for want of prosecution also provided that the case might be set for trial without further notice to either party.

On January 20, 1964, defendant's counsel wrote plaintiff's counsel notifying him that the case had been set for April 21, 1964. On the day the case was set for trial, April 21, 1964, defendant's counsel appeared, and when plaintiff's counsel failed to appear, moved the court to continue the trial for any period of time, even if for only one day, to give all parties the opportunity to appear with their witnesses for trial. The court denied this motion and dismissed plaintiff's statement of claim for want of prosecution, and the court proceeded to hear evidence in support of defendant's counterclaim under count 3 and entered a judgment by default in favor of the defendant and against the plaintiff in the amount of $1613.69. Thereafter, on May 21, 1964, within thirty days after the entry of the judgment, plaintiff moved to vacate the order dismissing its statement of claim and also moved to vacate the judgment by default entered in favor of the defendant. The motion of the plaintiff was supported by an affidavit of plaintiff's counsel which offered as an excuse for his failure to appear at the call of the case his illness caused by overwork. This motion by plaintiff was denied by the trial court. Thereafter, on October 26, 1964, more than thirty days after the default judgment and dismissal for want of prosecution, plaintiff filed its petition under section 72 of the Civil Practice Act to vacate the judgment of default and to vacate the order dismissing the claim for want of prosecution. This petition was supported by an affidavit of plaintiff's counsel. Defendant filed a motion to strike said petition and also filed a counteraffidavit. Plaintiff filed a further affidavit in reply to defendant's counteraffidavit.

On October 26, 1964, the same day on which the petition to vacate was filed, the court entered an order vacating the judgment of April 21, 1964, and reinstating the cause for trial.

After the denial of plaintiff's first motion to vacate, which was filed within thirty days after the entry of judgment, the plaintiff filed a notice of appeal from the ruling of the trial court denying the petition to vacate the orders entered on April 21, 1964. By stipulation dated July 7, 1964, the parties agreed to the dismissal of that appeal. The stipulation of July 7, 1964, was presented to the trial court together with the section 72 petition of the plaintiff filed on October 26, 1964.

In support of the petition filed on October 26, 1964, attorney Vincent R. Ewald stated that he was a member of the law firm of Brown, Stine & Cook; that he is the attorney of record for the plaintiff and had been the only attorney in said firm with any knowledge of the course of the proceedings, and that no other member of the firm had any knowledge or familiarity with the proceedings; that since about April 1, 1964, he had suffered from illness resulting in only occasional appearances at his office; that from April 16, 1964, to the date of the affidavit, which was June 26, 1964, he had made only two appearances at his office, on April 29 and April 30, and that he commenced a trial before Judge Sparing, which trial was recessed to June 2, 1964, due to his inability to proceed. That from May 4, 1964, to May 10, 1964, he was confined at the Chicago Osteopathic Hospital; that tests indicated that his illness was extreme exhaustion, spastic colitis and a cyst in one kidney, apparently resulting from overwork for the past year; that he had been devoting about ninety hours per week to his work during that period. He further stated that he had been unable to attend to details of his practice of law since his release from the hospital on May 10, 1964, and had remained at his home pursuant to medical advice. He further set forth that he did not answer the call of the case on April 21, 1964, and that no notice was given by counsel for defendant and counter-plaintiff on or before that date, which had been customary in prior course of proceedings in this case. He further stated that he believed that the order entered on April 21, 1964, in this case unduly prejudiced the rights of the plaintiff through no fault of the plaintiff. The affidavit concludes "that the plaintiff and counterdefendant has a meritorious defense to the counterclaim on which judgment was entered and a good cause of action under the original complaint."

The petition of the plaintiff merely requests the court to vacate its orders entered April 21, 1964, dismissing plaintiff's statement of claim for want of prosecution, and entering judgment for defendant and counterplaintiff against the plaintiff and counterdefendant, and states that the petition is filed pursuant to the provisions of section 72 of the Civil Practice Act. A motion to dismiss the petition was filed by the defendant and counterplaintiff. In support of this motion John B. Angelo filed his affidavit stating that he was a member of the law firm representing the defendant and counterclaimant; that at his direction on January 20, 1964, an associate of his firm wrote and mailed to Mr. Vincent R. Ewald, Brown, Stine & Cook, a notification that the above cause was set for trial on April 21, 1964, and attached to the affidavit a copy of the letter. He sets forth the names of the partners and associates in the firm of Brown, Stine & Cook. The affidavit further sets forth that at the call of the above entitled cause on April 21, 1964, and upon the failure of the attorneys for the plaintiff and counterdefendant to appear, he requested the court to continue the trial of the case for any period of time, even as short as one day, to give all parties the opportunity to appear with their witnesses for trial, and that said request was denied.

An additional affidavit was filed which was executed by Edwin L. Brown, Jr., John H. Hanson, Francis B. Stine and Robert G. Cook, Jr., all of whom said that they are and were members of the firm of Brown, Stine & Cook on April 21, 1964; that Stine, Cook and Hanson engage in trial work for the firm and that the aforementioned members were engaged in trial matters in other courts in Cook County. They also alleged that none of them had any knowledge whatsoever of any facet of the subject cause and were unaware of the fact that this case was set for trial on April 21, 1964.

The plaintiff filed its petition and the court granted relief more than six months after the entry of the default judgment and dismissal of plaintiff's claim for want of prosecution. After the expiration of thirty days the trial court did not have jurisdiction to grant the relief prayed for in the petition unless the plaintiff brought itself within the terms of section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72).

The record shows that a petition was filed asking for the same relief within thirty days and the court denied the plaintiff the relief sought. That petition was in the nature of a motion and supported by the same facts set forth in the affidavit of Vincent R. Ewald, which was filed in support of the ...


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