Appeal from the Municipal Court of Chicago, First Municipal
District of the Circuit Court of Cook County; the Hon. JOSEPH H.
McGARRY, Judge, presiding. Order reversed and cause remanded with
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order denying defendant's petition to vacate a default judgment in favor of plaintiff.
On August 6, 1964, plaintiff filed its complaint against defendant, alleging that on June 25, 1964, defendant submitted to plaintiff samples of a quantity of "outer nuts" for sale to plaintiff at the price of 6 1/2¢ each; that the offer for sale was made pursuant to sample and based upon the representation that the "outer nuts" contained in forty-six cartons complied with the submitted samples; that plaintiff placed an order for twenty-four thousand (24,000) "outer nuts" at a total price of one thousand five hundred and sixty dollars ($1,560); that plaintiff thereupon delivered its check to defendant who furnished the "outer nuts"; and that the "outer nuts" were defective and did not comply with the samples submitted, and therefore plaintiff was entitled to judgment.
On August 25, 1964, defendant, by his attorney, filed and had time-stamped an appearance and a verified answer to the complaint, said answer alleging that payment was made by plaintiff to defendant only after plaintiff had inspected and accepted the "outer nuts"; that the "outer nuts" complied with the samples submitted; that the samples submitted to plaintiff were surplus, seconds or rejects and that plaintiff was well aware of this fact; that the prevailing cost price for "outer nuts" is approximately eighteen to twenty cents per nut; that plaintiff was given the price of six and one-half cents because the nuts were seconds or rejects as plaintiff well knew; that to compensate for nuts which might be defective or unusable for the purpose intended, defendant delivered to plaintiff an extra one thousand "outer nuts"; and that plaintiff by and through its agents and servants, in the presence of defendant, inspected the contents and quality of the nuts delivered, made no complaint or protest, and only subsequent to said inspection did plaintiff issue its check.
On January 29, 1965, judgment was entered against defendant in the sum of one thousand five hundred and sixty dollars ($1,560). The court found in the preface to its judgment order that ". . . the defendant [was] absent and not represented. . . ."
On February 8, 1965, a writ of execution was issued. Service was not made upon defendant until March 6, 1965, twenty-five days after the writ was placed.
Thereafter, defendant filed a petition to vacate the default judgment alleging that on August 25, 1964, defendant filed a verified answer stating a valid defense to the complaint; that the cause was set for September 15, 1964, in Room 915; that on September 15, 1964, the matter was assigned to Room 1121 and set for trial on October 13, 1964; that on October 13, 1964, defendant appeared in Room 1121, but was advised that counsel for plaintiff had already appeared, and caused the lawsuit to be continued, representing that the request for continuance was by agreement; that defendant's counsel had no contact with counsel for plaintiff and was unaware of any agreement to continue the matter; that defendant's counsel then asked the clerk for the new trial date; that through inadvertence or mistake, defendant's counsel was advised by the clerk of the court that the new trial date was February 26, 1965; that in reliance upon the statement of the clerk, counsel recorded the February 26 trial date in his diary; that although defendant's counsel was advised that February 26 was the new trial date, the new trial date was January 29, 1965; that on February 26, defendant's counsel again appeared in Room 1121 but could not find the instant matter on the court's call of cases; that counsel immediately checked with the clerk's office but could not locate the court file, which file was "short." (When a file is "short" it means that it cannot be found); that on March 7, 1965, defendant was served with a writ of execution, which was the first knowledge that either he or his counsel had of the entry of a judgment, as the execution was placed for service on February 8, 1965, but was not served until March 7, 1965, a period in which defendant was in town and available for service; that immediately upon receipt of the execution, defendant's counsel examined the court file, which was now available, and determined for the first time, that the trial of the cause had been set for January 29, and not February 26, as he had been advised; and that the verified answer and appearance filed on behalf of defendant on August 25, 1964, was not disclosed by the file. No answer was filed to the verified petition to vacate the default judgment.
The trial court denied the petition to vacate the judgment. This appeal is taken from that order.
It is defendant's theory that the verified petition, which stands uncontradicted, stated proper grounds for relief under section 72 of the Civil Practice Act and that the trial court, therefore, erred in denying the petition to vacate.
At the outset we observed that no appearance or brief was filed in this court by plaintiff. Under such circumstances a judgment may be reversed without a consideration of the cause on its merits. Eichelberger v. Robinson, 233 Ill. App. 579 (1924); C.I.T. Corp. v. Blackwell, 281 Ill. App. 504 (1935); 541 Briar Place Corp. v. Harman, 46 Ill. App.2d 1, 196 N.E.2d 498 (1964); Ogradney v. Daley, 60 Ill. App.2d 82, 208 N.E.2d 323 (1965). Because, however, the above rule is discretionary, we will consider the merits of defendant's appeal.
This case is governed by section 72 of the Illinois Civil Practice Act, Ill Rev Stats (1963) ch 110, Par 72, and the decisions of the courts construing that Act. In Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348 (1963), the Supreme Court held at page 613:
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 above recited language has been relied upon consistently by this court in circumstances similar to those in the instant case. Stehman v. Reichhold Chemicals, Inc., 57 Ill. App.2d 40, 206 N.E.2d 299, 300 (1965); Spencer v. American United Cab Ass'n, 59 Ill. App.2d 165, 208 N.E.2d 118, 121 (1965); Vosnos v. Wenzel, 44 Ill. App.2d 192, 194 N.E.2d 484, 486 (1963).
For a default judgment to be set aside, a petitioner should show, (1) that he has a meritorious defense to the claim brought against him, and (2) that he and his attorney have exercised reasonable diligence . . ., Rule 3, sec 1.5, Civil ...