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Ulrich v. Glyptis

FEBRUARY 21, 1967.

MABEL ULRICH, EXECUTOR OF THE ESTATE OF J. ROBERT ULRICH, DECEASED, PLAINTIFF,

v.

NICHOLAS GLYPTIS AND IRENE N. GLYPTIS, DEFENDANTS.



Appeal from the Circuit Court for the Eighteenth Judicial Circuit of DuPage County; the Hon. WILLIAM C. ATTEN, Judge, presiding. Order affirmed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 13, 1967.

Plaintiff, as executor of the estate of her late husband, brought suit against defendants Nicholas Glyptis and Irene N. Glyptis on an alleged note in the face amount of $25,000, and secured judgment on complaint and answer, by default. This dispute relates to the dismissal of defendants' second petition to vacate the default judgment by proceedings brought under section 72 of the Civil Practice Act. (Ill Rev Stats 1965, c 110, § 72.)

The instrument upon which the suit is based is written on stationery bearing the letterhead of "MULTI-TRON LABORATORY, INCORPORATED," as follows:

"March 11, 1961

"Received of Dr. J. Robert Ulrich and Mabel A. Ulrich of Arboretum Road, Glen Ellyn, Illinois, the sum of $25,000 (Twenty-five Thousand Dollars) as a loan for the period of one year as of this date, March 11, 1961 which may be returned within a lesser time if the borrower so desires upon the following basis:

"The sales for the period of January, February, March of 1961 will be compared to the three month period previous to its return or if the full year is used, the period January, February, March 1962 as a basis to establish a ratio of gross sales of Multi-Tron Laboratory, Incorporated that the ratio will be used on the original amount and will be returned for example, if the sales for the quarter ending March 31, 1961 amount to $100,000/and the sales for the same period in 1962 amount to $200,000. the principal will be doubled, likewise if the sales amount to only $150,000. in the quarter ending March 31, 1962, the principal will be returned at $25,000. plus an amount equal to 50% of the principal. In the event there is no increase in sales, a nominal interest of at least 4% will be paid.

/s/ Nicholas Glyptis Nicholas Glyptis

/s/ Irene N. Glyptis Irene N. Glyptis"

The complaint alleged the instrument to be a note, and further alleged both a demand for and a failure of payment. The defendants' answer denied all of the allegations of the complaint, and further alleged that the loan in question was made "not to the defendants but to Multi-Tron Laboratory, a corporation."

Trial on the complaint and answer was had on December 14, 1964, without the defendants being present either in person or by counsel. Judgment was thereupon entered in favor of the plaintiff and against the defendants, individually, in the total amount of $29,687, pursuant to a judgment order filed on December 30, 1964.

On July 14, 1965, after citation hearings were continued from time to time, the defendants filed a verified petition under section 72 of the Illinois Civil Practice Act to vacate the judgment against them. This petition, which was filed by a new attorney for defendants, simply set forth, in essence, that the complaint was unverified, that an appearance and answer was filed on behalf of defendants, that the defendants were in a confused and upset mental condition because of financial difficulties and because of the deaths of certain family members of one of the defendants, that the defendants were not in contact with their attorneys until after the judgment was entered, that the report of proceedings neither mentions the names of the defendants nor the method by which the case came on for hearing and does not contain any testimony of the plaintiff, that the instrument sued upon was on the stationery of a bankrupt corporation and was not notarized or witnessed, and that the foregoing facts, if known at the time of the judgment order, would have prevented the entry of same. The petition was denied on November 23, 1965.

On December 14, 1965, after another substitution of attorneys for defendants, a second petition was filed to vacate the judgment pursuant to section 72 of the Illinois Civil Practice Act. ...


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