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Johnson-olson Floor Coverings v. Branthaver

MAY 9, 1968.

JOHNSON-OLSON FLOOR COVERINGS, INC., PLAINTIFF-APPELLEE,

v.

JAMES BRANTHAVER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. FRED J. KULLBERG, Judge, presiding. Affirmed. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Plaintiff sued defendant to recover the balance due for merchandise sold. Thirty days after a default judgment was entered, defendant was served with a citation and six days later filed a motion to open up the judgment and for leave to plead. Defendant appeals from the order denying his motion.

Consideration of the following facts and circumstances in the record impels this court to affirm.

On August 30, 1966, the plaintiff filed his unverified complaint, alleging an open account and praying for judgment against the defendant in the amount of $432.33. On the next day, and apparently without knowledge of this suit, the defendant filed a voluntary petition in bankruptcy in the United States District Court for the Northern District of Illinois. The bankruptcy petition named the plaintiff as a creditor, but there is nothing in the record to indicate that plaintiff received a restraining order from the federal court forbidding him from pursuing his claim against the defendant. The defendant was served with summons herein on September 8, 1966, but failed to file an appearance, answer or any other pleading within the time permitted by law. On January 5, 1967, defendant's debts were discharged in bankruptcy. On the following April 19, however, on plaintiff's motion and without proofs, the trial court entered judgment in favor of the plaintiff and against the defendant in the amount prayed.

On May 19, the thirtieth day after entry of the default judgment, plaintiff filed a citation to discover assets. When the citation was served upon defendant on May 25, it was the first notice he received that the judgment had been entered. On June 5, defendant filed his motion and supporting affidavit under section 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72), asking that the judgment be vacated and that he be given leave to file his answer.

Essentially, defendant's affidavit set forth the foregoing facts, and averred further that defendant "was under a misapprehension that his pending bankruptcy relieved him of the responsibility of responding to a suit in state court and, therefore, he did not consult an attorney, file an answer or otherwise enter his appearance in the matter." The plaintiff did not file a response to defendant's motion and affidavit, leaving the allegations therein unchallenged. The trial court denied defendant's section 72 motion to vacate the judgment order, whereupon defendant filed this appeal.

It is defendant's contention that he was free from negligence and that the bankruptcy proceedings furnished him with a meritorious defense. He further contends that principles of "substantial justice" dictate that the judgment order be set aside.

It is well settled that a determination under section 72 invokes the equitable powers of the court, as justice and fairness require. See, e.g., Elfman v. Evanston Bus Co., 27 Ill.2d 609, 613, 615, 190 N.E.2d 348 (1963). Although this section is not intended to relieve a party "from the consequences of his own mistake or negligence" Ulrich v. Glyptis, 79 Ill. App.2d 447, 454, 224 N.E.2d 581 (1967), relief thereunder will be granted where the defendant shows a reasonable excuse for failure to act within the appropriate time, together with a statement of ultimate facts showing a meritorious defense. See, e.g., Stoller v. Holdren, 47 Ill. App.2d 81, 82, 83, 197 N.E.2d 492 (1964).

It is this court's opinion that the defendant has not met the burden of section 72, and that the trial court properly refused to set aside its judgment order. Several factors lead to this conclusion.

Passing momentarily the question as to whether the defendant had a meritorious defense at the appropriate time, we shall first consider whether the defendant acted diligently as contemplated by section 72.

There is, to be sure, some confusion as to the standard of conduct required of a defendant under section 72. It is quite clear, however, that the defendant must show that his failure to defend was a result of excusable mistake, and that under the circumstances he acted reasonably, and therefore not negligently, when he failed to initially resist the judgment. Boyle v. Veterans Hauling Line, 29 Ill. App.2d 235, 172 N.E.2d 512 (1961).

While the question of the defendant's negligence must be determined on the facts of each particular case, the decisions dealing with the question imply that the defendant's neglect is not excusable where he ignores the summons, or otherwise treats the proceedings with indifference. Thus, in Busser v. Noble, 8 Ill. App.2d 268, 283, 131 N.E.2d 637 (1956), the court made the following observation:

"In the instant case defendant paid attention to this summons. He did not treat it with indifference. He did just what the ordinary individual would do. He delivered it to the agent of his insurance carrier. He thereafter made repeated inquiries concerning it and was assured his interests would be taken care of. His conduct was not inexcusable." (Emphasis added.)

In Dalton v. Alexander, 10 Ill. App.2d 273, 288, 135 N.E.2d 101 (1956), it was likewise noted that the defendant "did not ignore the summons." See also Widicus v. Southwestern Elec. Cooperative, Inc., 26 Ill. App.2d 102, 110, 167 N.E.2d 799 (1960), where the court observed that "the defendant did not treat the court's command nor plaintiff's claim with indifference." While these cases involved the question of setting aside default judgments within a thirty-day period and not under section 72 as here, the allusions to the issue of excusable neglect in the defense of a case are addressed to the same equitable powers of the court.

Defendant has cited no case, and we know of none, where a defendant was granted relief under section 72 after ignoring the proceedings on his own initiative. In each case where the judgment had been set aside, the defendant had taken some action, albeit insufficient, in response to the summons. In the leading case of Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350 (1952), the defendant immediately forwarded the summons to the law firm that was to represent him, and the firm's docket clerk inadvertently showed a wrong return day, thereby allowing a default judgment to be entered. Later decisions have held that defendants may be guilty of only excusable ...


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