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Halter v. Schoreck

MARCH 21, 1966.




Appeal from Circuit Court of Cook County; the Hon. WILLIAM M. BARTH, Judge, presiding. Affirmed. MR. PRESIDING JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

Defendant, Charles Schoreck, appeals from a judgment for plaintiff, Robert A. Halter, d/b/a The Music Center, entered on April 8, 1965, contending as the only issue that the court lacked jurisdiction. Defendant charges that the court lost jurisdiction after the entry of an order dismissing the cause for want of prosecution on May 21, 1957, and that its order vacating said dismissal and reinstating the cause on December 5, 1957, (being more than thirty days after the entry of the order of dismissal) and all subsequent proceedings, including the judgment, were void. Plaintiff's answering contention is that his motion, supported by affidavit, filed on December 5, 1957, and the basis for the order reinstating the cause, invoked the benefit of section 72 of the Practice Act (Ill Rev Stats 1965, c 110, § 72) and gave the court jurisdiction. Defendant counters by saying that said motion and affidavit failed to comply with the requirements of section 72.

In order to determine the issue, we review the chronological events involved. Plaintiff filed his action on March 1, 1956. Issue was drawn by defendant's answer to the complaint and his demand for jury trial. The case was set several times for trial, one of the dates being May 21, 1957. On that day, plaintiff, failing to answer the call, the court entered the order of dismissal for want of prosecution. On December 5, 1957, some seven months thereafter, plaintiff filed a motion for reinstatement and moved to vacate the dismissal order of May 21, 1957 based upon an attached affidavit which alleged, among other things:

4. That this matter was then set for October 15, 1956, at which time it was continued until February 5, 1957, and that on said date it was continued until May 21, 1957, at which time an order was entered by this Court on motion of the defendant to dismiss this case for want of prosecution.

5. That there was a clerical error in the office of the Attorney for the plaintiff, and it was not known that this matter was set for hearing on May 21, 1957, before this Honorable Court. If it had been known this office would have appeared on that date.

6. That no notice was received by our office either by telephone or in writing that the defendant was requesting the Court to dismiss said cause of action.

7. That during the month of July it was brought to the attention of the secretary of your affiant that said case had been dismissed for want of prosecution, but that your affiant was not within the country and therefore was unable to take the proper steps to reinstate said cause of action.

8. That your affiant returned to this country during the first week of September 1957, and subsequently contacted the attorney of record for the defendant requesting a stipulation to vacate said order and reinstate said cause, which was refused.

9. That the plaintiff has a rightful cause of action against the defendant for the sale of one Lowrey Organo Piano to said defendant and is entitled to a judgment in the sum of $1,519.25.

10. That the defendant has since the 9th day of February, 1956, had in his possession said Organo Piano and has used said Organo Piano for his personal entertainment and that he has now and in the past refused to pay the plaintiff for said musical instrument.

11. That substantial ends of justice will be defeated if this cause of action is not reinstated.

On that day the court vacated the order of dismissal and reinstated the case for trial. Defendant thereafter, on December 18, 1957, appeared to "ask the court to vacate the order of December 5, 1957 and to deny" the motion. After hearing the matter and "being fully advised in the premises," the court denied defendant's motion and reset the cause for trial in April 1958.

The record before us discloses that the cause then took a course of many postponements involving substitution of attorneys for defendant, motions and discovery applications and filing of interrogatories and answers thereto. Eventually, on January 10, 1961, the case went to a jury trial resulting in a verdict for the defendant. A new trial was allowed and the case again reset for trial. The case again languished due to further postponements until August 22, 1961 when it was dismissed for want of prosecution and reinstated within thirty days. It suffered several more dismissals and on each occasion was reinstated within the proper time. *fn1 On April 8, 1965 the cause went to trial before a jury and resulted in a verdict and the judgment for plaintiff, from which defendant here appeals.

It is conceded that after the lapse of thirty days the dismissal order of May 21, 1957 became final and appealable and that relief therefrom could only be had by appeal or a proper section 72 proceeding.

In Harris v. Chicago House Wrecking Co., 314 Ill. 500, 145 NE 666 (1924), we find the Supreme Court disposing of a situation quite similar to the one before us. In Harris, after the case was at issue, it was stricken from the trial docket on July 18, 1914. On June 17, 1915 the case, with others which too had been stricken from the docket, was redocketed and placed on the trial call for the following day. When called for trial on June 18, 1915, and plaintiff failed to appear, it was dismissed for want of prosecution. On October 16, 1915, some six months later, and after the term *fn2 in which the order was entered, had expired, attorney for plaintiff gave notice to defendant's attorney that he would appear ...

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