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Fargo v. Engling

NOVEMBER 24, 1967.

MIKE A. FARGO, PLAINTIFF-APPELLEE,

v.

ALFRED E. ENGLING, SR. AND ALFRED J. ENGLING, JR., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Order affirmed.

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

Defendants appeal from an order of dismissal of the above cause by the Circuit Court of Cook County entered on September 17, 1962, on the ground that the court lacked jurisdiction to grant plaintiff's motion to vacate an order of dismissal entered three years prior to said motion.

On February 25, 1959, plaintiff filed a complaint in the Circuit Court of Cook County against defendants, Alfred E. Engling, Sr., and Alfred J. Engling, Jr. The complaint sought damages in the amount of $25,000 for alleged injuries sustained in an automobile collision. On March 26, 1959, defendants answered the complaint and filed a counterclaim against the plaintiff seeking judgment in the sum of $15,000 for injuries sustained in the same collision. After the counterclaim had been filed, the law firm of Querrey, Harrow, Gulanick and Kennedy (Querrey, Harrow) obtained leave to file their appearance as additional counsel to appear for the plaintiff. On September 17, 1962, a stipulation to dismiss the counterclaim was filed in court. The stipulation read as follows:

"Stipulation to Dismiss Counterclaim

"It is hereby stipulated and agreed by and between the parties to the above entitled Counterclaim, acting through their respective attorneys, that said Counterclaim be dismissed without costs to either party, all costs having been paid and all matters in controversy for which said Counterclaim was brought having been fully settled, compromised and adjourned.

"Dated this 11th day of September, 1962.

Samuel T. Klaskin /s/ Samuel T. Klaskin Attorney for Plaintiff (Counter) Querrey, Harrow, Gulanick & Kennedy By: /s/ Querrey, Harrow, Gulanick & Kennedy Attorneys for Defendants."

It will be noted that Querrey, Harrow signed the stipulation as attorneys for defendants, whereas they had filed an appearance as additional counsel for the individual plaintiff (cross-defendant).

On September 17, 1962, the trial judge entered the following order:

"It appearing to the court that said cause has been settled, and by agreement of the parties:

"IT IS HEREBY ORDERED, adjudged and decreed that the above entitled cause be and the same is hereby dismissed without costs.

Enter: /s/ Cornelius J. Harrington, Judge."

Thereafter, on September 13, 1965, nearly three years after the order of dismissal was entered, the plaintiff moved to vacate the order of dismissal and was given leave to file a petition in support of the motion.

On September 23, 1965, the plaintiff filed a petition in which plaintiff set up that in 1959 the plaintiff filed a law suit against Alfred E. Engling, Sr. and Alfred J. Engling, Jr., case No. 59C 3261. Thereafter the defendants filed a counterclaim against plaintiff. On or prior to September 17, 1962, an agreement was reached between Querrey, Harrow, who represented the plaintiff on the counterclaim, and Samuel T. Klaskin, to settle the counterclaim which was brought against plaintiff. The attorneys entered into the stipulation heretofore set forth to dismiss the counterclaim. The stipulation was ...


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