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Piper v. Reder

APRIL 25, 1966.

KENNETH M. PIPER, ET AL., PLAINTIFFS-APPELLANTS,

v.

ROBERT REDER, ET AL. AND JOHN MADRO D/B/A STANDARD CONSTRUCTION COMPANY, AND THE VILLAGE OF NORTHFIELD, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Plaintiffs appeal from an order entered on a petition under section 72 of the Civil Practice Act. The order reinstated an action which had been dismissed for want of prosecution while the cause was pending before a master in chancery for a hearing of defendants' "Suggestion of Damages."

The issue before this court is the propriety of the order under the facts set forth in the petition, answer and reply. The vacating order entered on June 1, 1965, by Judge Daniel A. Covelli, states: "[T]he Court finds that this cause was pending before Master Henry E. Perry on said date and if this fact had been known to the court at said time, the Order of Dismissal would not have been entered on said January 15, 1965."

Plaintiffs' principal contention is that "the trial court erred in failing to conduct a full hearing of the allegations in the Petition and Answer thereto"; also, that the petition should "bring before the court matters not appearing of record, which if known by the court, would have prevented the rendition of the order." Plaintiffs further contend that the petition "vilified and accused plaintiffs' attorney of fraud, malicious unprofessional conduct and other nefarious charges and the trial court had a duty to conduct a full hearing thereon."

In substance, the section 72 petition shows that defendants were successful in a temporary injunction proceeding and filed a Suggestion of Damages which was referred to a master in chancery and set for hearing on June 19, 1964. On December 22, 1964, attorneys for both sides appeared before Judge Covelli on defendants' motion to close discovery proceedings. On the representation that the cause had been transferred to Judge Lupe, the attorneys took the motion to Judge Lupe, and he set January 15, 1965, as the date for taking the deposition of defendant Robert Reder.

On January 15, 1965, the deposition of Robert Reder was taken and also, on the same day, without knowledge on the part of defendants and their attorneys, an order was entered by Judge Covelli as follows: "This cause coming on to be heard upon the regular call of cases and there being none present to answer; It Is Hereby Ordered that the entitled cause be and the same is hereby dismissed for want of prosecution."

In their petition, defendants alleged that they first learned of the dismissal order of January 15, 1965, at a master's hearing on April 27, 1965, and charged plaintiffs with knowledge of and concealment of the dismissal order.

The answer of plaintiffs alleged that defendants knew the matter was on the chancery calendar call of January 15, 1965, and that the "dismissal was due entirely to defendants' lack of diligence and fault and neglect, and there exists no excusable mistake on defendants' part to justify vacation of order." Plaintiffs further denied all knowledge of and concealment of the dismissal order. Defendants' reply denied knowledge of the case being called on the calendar on which it was dismissed.

We agree with plaintiffs: that section 72 is not intended to relieve a litigant from the consequences of his own negligence (Williams v. Pearson, 23 Ill.2d 357, 177 N.E.2d 856 (1961)); that one function of the section is to bring to the attention of the court matters of fact not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition (Burns v. People, 9 Ill.2d 477, 479, 138 N.E.2d 525 (1956)); and that the reference of the cause to the master was part of the court records and technically was known to the court at the time of the entry of the dismissal order.

At the outset, we find no error in the trial court conducting the hearing only on the petition, answer and reply. In Domitski v. American Linseed Co., 221 Ill. 161, 77 N.E. 428 (1906), it is said (p 166):

"It has always been the practice in this State to hear proceedings of this kind upon affidavits and counter-affidavits."

In 60 CJS 34, it is said:

"It is the usual practice to hear and determine motions on the supporting affidavits and ordinarily no oral testimony should be received on the hearing of a motion."

In Isaacs v. The Shoreland Hotel, 40 Ill. App.2d 108, 188 N.E.2d 776 (1963), in considering a petition filed under section 72 of the Civil Practice Act, where it was argued that defendant's affidavits could not be considered because they were not supported by oral testimony with the right of ...


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