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Bell Auto Repair v. Henderson

JULY 21, 1966.

BELL AUTO REPAIR & PAINTING CORPORATION, PLAINTIFF-APPELLEE,

v.

MANUEL HENDERSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Municipal Division; the Hon. JOSEPH B. HERMES, Judge, presiding. Reversed and remanded with directions.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This involves an appeal from an order denying defendant's petition to vacate and set aside a judgment by confession on a promissory note.

Judgment was entered April 23, 1962, against the defendant and in favor of the plaintiff. On January 8, 1965, the defendant filed a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 72), setting forth that the judgment was void and should be set aside and vacated because it was procured through fraud and fraudulent concealment of the cause of action by the respondent (plaintiff). The petition then alleged the following:

"2. a. That the suit is based upon a fraudulent promissory confession note, the existence (sic) of which was never made known to your Petitioner, but was fraudulently concealed from him for over a period of three years, to-wit from the date of the note Nov. 11, 1961 up until Petitioner's homestead was sold by virtue of levy made thereon by Respondent to satisfy said judgment.

"b. That Execution was never served on Petitioner and Petitioner was not aware that suit had been instituted against him at any time.

"c. That the levy was made and served Nov. 20, 1963 against Petitioner's real estate by the Bailiff of the City of Chicago to satisfy said Judgment, no Notice as is required by the Illinois Revised Statutes, Chap 77, Sect 15.2 was ever Served on Petitioner.

"d. That said note is not the note of Petitioner, is without consideration, is false and fraudulent, was never written, signed, or executed by him.

"e. That the Cognovit in this cause, is signed by an Attorney who is wholly unknown to Petitioner, and the Cognovit is therefore false.

"f. That Defendant's real estate was sold by virtue of said levy, December 16th 1964, by the Bailiff of the City of Chicago, under Execution 537606."

The petition also set forth that at the time of the entry of the judgment the aforementioned facts were unknown to the court and to the petitioner, and that the petitioner was without fault or negligence. Among other relief requested the petitioner prayed that the judgment be set aside and vacated, and held null and void. The petition was sworn to by the defendant.

The defendant also attached to the petition an affidavit in which he set forth that he had a good defense on the merits to the whole of plaintiff's demand; that the nature of his defense was fraud and fraudulent concealment of the cause of action in that the plaintiff fraudulently concealed from the defendant the fact that the plaintiff held a promissory note on which defendant's name appeared as maker; that defendant did not know of the existence of said note, had never heard of it, had never signed it and had never authorized anyone to sign his name to said note, and that if his name appeared as maker on said note, the plaintiff, through false and fraudulent representations had induced the defendant to sign his name to a blank piece of paper; that if defendant had signed a note it was fraudulently concealed from him by the plaintiff; that said note remained fraudulently concealed in the possession of the plaintiff for over three years, and that defendant was unaware of its existence; that defendant had taken his automobile to plaintiff's shop for repairs and agreed to pay plaintiff the sum of $649 for the work to be done on the car, and $110 was to be paid down and $35 per month until the full amount of $649 was paid; that the sum of $649 was the total cost of said repairs as represented by the plaintiff, and that the defendant owed the plaintiff nothing after the said amount had been paid; that the full amount of $649 and more had been paid by the defendant and that during all of the time the defendant was making monthly payments of $35 the plaintiff fraudulently concealed from him the fact of the existence of said note. The defendant further set forth in his affidavit that the judgment by confession was entered against him on April 23, 1962, in the sum of $1,498.95, based upon the concealed note held by the plaintiff, and that the defendant was unaware that judgment had been entered against him on said note until the defendant's real estate was sold by the Bailiff of the city of Chicago December 16, 1964. The defendant further set forth that he had never been served with execution or with other notice. Defendant further alleged that the plaintiff fraudulently concealed from the defendant the judgment until more than two years had lapsed after its entry; that the homestead jointly owned by the defendant and his wife was sold in accordance with a levy made on November 20, 1963. The defendant further set forth in his affidavit that the falsity of the note did not appear of record and that the defendant has not had his day in court, nor has the court been advised as to the foregoing fraud perpetrated on him.

The plaintiff filed neither a motion to strike the petition nor an answer to the petition. The record before us is not clear as to the reason why the trial judge refused to vacate the judgment, but it is argued that it was because the petition to set aside the judgment was filed more than two years after its entry. Section 72 (3) of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 72(3)) reads as follows:

"The petition must be filed not later than two years after the entry of the order, judgment or decree. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of two years."

The matters set forth in the petition to vacate and in the affidavit of the defendant attached thereto were sufficient to show fraudulent concealment of the existence of a note or the existence of a judgment until after the two-year period had expired. Therefore, the two-year period did not operate as a limitation upon the defendant in seeking relief under section 72 of the Civil Practice Act. Indeed, the plaintiff does not in this court question the sufficiency of the petition but in its brief argues matters which appear nowhere in the record before us. The plaintiff in its brief has not ...


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