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Maley v. Norville

MAY 13, 1968.

CHARLES DAVID MALEY, AS RECEIVER OF MCKEOWN & CO., PLAINTIFF-APPELLEE,

v.

JAMES P. NORVILLE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. Affirmed in part and remanded with directions.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

Defendant appeals from an order denying his petition under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72), which petition sought to vacate a judgment entered against defendant, to stay the execution thereon, and to quash the writ of capias ad satisfaciendum theretofore entered against defendant. On this appeal, defendant maintains that his petition under section 72 set forth a meritorious defense to the judgment, that he made a showing of reasonable diligence, that the original complaint failed to state a cause of action, and that the body execution issued against him was unjust, not founded upon fact, and contrary to the rules.

The instant action was commenced on March 3, 1965, when plaintiff, who had been appointed the receiver for McKeown & Co. (McKeown), by the Federal District Court for the Northern District of Illinois, filed a complaint against Norville and eight other defendants, all of whom were partners of an Illinois copartnership known as Iroquois Development Company (Iroquois). The complaint alleged that an audit of McKeown's books disclosed that there was due and owing from Iroquois to McKeown, the sum of $20,600. Norville was the Secretary and a Director of McKeown, as well as a partner in Iroquois. The complaint further alleges that the loans made to Norville were in violation of the Illinois Business Corporation Act and "the individual officers and directors who made said loan acted wilfully and wantonly and knowingly in violation of the law." On the basis of this allegation it is claimed that malice was the gist of the action with respect to Norville's liability.

The record shows that on March 8, 1965, the Sheriff of Kane County, Illinois, served Norville personally with a summons and copy of the complaint, both in his individual capacity and in his capacity as a partner of Iroquois.

On May 4, 1965, Norville, having failed to file an answer, or otherwise make an appearance, was judged in default and a hearing was set for May 19, 1965. On that date, the following order was entered:

"The Court having heard the evidence in open Court and being otherwise fully advised in the premises, the Court doth find:

"1. That there is due and owing from the defendant, James P. Norville, to the plaintiff Charles David Maley, as Receiver of McKeown & Co., the sum of $16,100.00 on account of transactions between McKeown & Co. and Iroquois Development Company, a co-partnership.

"2. That the defendant, James P. Norville, is guilty of wanton and willful misconduct, and that malice is the gist of the action against the said defendant.

"3. That the said defendant, James P. Norville, is guilty of malice with respect to his liability to the plaintiff in the sum of $16,100.00."

One week later, plaintiff filed an "Execution And Fee Bill On Transcript On Judgment" in Kane County, which execution showed that a judgment had been entered against defendant on May 19, 1965, in the sum of $16,000, and that demand for payment was being made. The Sheriff of Kane County indicated on the execution that he received the document on May 26, 1965, at 4:00 p.m. On May 29, 1965, an appropriate demand was made on Norville by a deputy in the Sheriff's office. On July 4, 1965, defendant was arrested on a writ of capias ad satisfaciendum and three days later the instant section 72 petition was filed.

In his petition defendant admits that he was served with a summons on March 8, 1965. He alleges, however, that he "did not know of the entry of this judgment in this case until he was served with some paper and later arrested by the Kane County Sheriff on a writ of capias ad satisfaciendum on Independence Day, July 4, 1965." The petition goes on to allege that the primary complaint is insufficient because it only states that "loans" were made by McKeown to Iroquois but does not specify the dates of the loans, the amount, collateral if any, notes if any, and "consequently defendant was not aware that he must file an appearance and defend this suit." He baldly asserts that he relied on the other partners of Iroquois to respond to the suit. Defendant further alleges that he was not a party to any such loans and if they existed, the partners were acting outside the scope of the firm's business.

Attached to the section 72 petition was an answer to the complaint which was really a motion to strike. Defendant denied that he was presently engaged in the business of Iroquois in that he had withdrawn from the partnership in 1963. He then moved to strike the remaining allegations as being conclusions and incapable of being answered.

Included as a part of the record is a copy of the Iroquois partnership agreement entered into July 10, 1962, and signed by the defendant Norville. One of the provisions of the partnership agreement provides:

"The partnership shall begin on the 10th day of July, 1962, and continue until the 9th day of July, 1967, unless terminated sooner by ...


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