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Hill v. Dillon

FEBRUARY 17, 1969.

GEORGIA HILL, APPELLANT,

v.

ROSCOE DILLON, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. HAROLD G. WARD, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from the order of the Circuit Court entered on January 25, 1968, dismissing the plaintiff's action on motion of the defendant, Roscoe Dillon.

The instant appeal grew out of a suit initiated by the plaintiff on August 2, 1962. In her complaint, the plaintiff alleged that on or about September 1, 1961, Roscoe Dillon, while operating a motor coach owned by the Chicago Transit Authority, negligently and carelessly operated the vehicle in such a manner as to injure the plaintiff as she alighted from the bus. An appearance and an answer were filed by the defendant in which he generally denied any negligence on his part.

On November 24, 1965, an order was entered by Judge William S. White, then sitting in the County Department Law Division, dismissing the plaintiff's cause of action for want of prosecution. The order recited that neither party responded to a pretrial hearing. On the same day, however, the plaintiff's attorney appeared before Judge White and moved to vacate the dismissal order, stating that his failure to appear for the pretrial hearing was due to being otherwise engaged. Judge White then entered an order that the case came to be heard on plaintiff's motion to vacate the dismissal of her case, which order recited, in part: . . . and counsel for Plaintiff appearing late and representing to the Court that he was otherwise engaged and making his motion instanter in open Court to vacate said order of dismissal.

It is hereby ordered that leave be and same is hereby granted Plaintiff to move to vacate the order dismissing said cause entered this date and hearing on the same and the pretrial hearing is entered and continued to December 15th, 1965 at 10:00 a.m. (Emphasis added.)

While the record is silent as to what action the court took on December 15, 1965, it would appear that the cause remained pending and awaiting trial.

On August 11, 1967, the plaintiff, after having served notice upon the defendant, went before Judge Harold G. Ward, the Assignment Judge, and moved to set the cause for trial on a day certain. Judge Ward entered the requested order and the cause was set on the trial call "below the black line." Five days later, on August 16, 1967, the defendant presented a motion to Judge Ward, requesting that the case be removed from the trial call on the ground that the lawsuit had been dismissed for want of prosecution on November 24, 1965, and had never been reinstated. In his order, entered in response to the defendant's motion, Judge Ward stated that it appeared to the court that the cause had been dismissed on November 24, 1965; that the plaintiff had been given leave to file a petition to vacate the order dismissing the cause; that a hearing had been set for December 15, 1965; and that the order had never been vacated. Judge Ward ordered that the case be removed from the trial call.

The plaintiff then petitioned Judge White, who was then sitting in the Criminal Court, for an order nunc pro tunc as of December 15, 1965, to vacate and set aside the order of dismissal for want of prosecution entered on November 24, 1965. The defendant filed an affidavit in opposition to the plaintiff's petition. On October 3, 1967, the nunc pro tunc order was entered of record vacating the order of November 24, 1965, as of December 15, 1965. The nunc pro tunc order entered by Judge White recited that the court was fully advised of the premises and had jurisdiction of both the parties and the subject matter.

After more than thirty days had elapsed from the entry of the nunc pro tunc order the plaintiff went before Judge Ward requesting that her cause of action again be placed on the trial call. On January 23, 1968, an order was entered by Judge Ward setting the cause on the trial call "below the black line" on January 25, 1968.

On January 25, 1968, the defendant went before Judge Ward and asked that the case be dismissed. In his motion to dismiss the defendant alleged that (1) the cause had originally been dismissed for want of prosecution on November 24, 1965; (2) an order was entered without notice to or knowledge of the defendant giving plaintiff leave to file a motion to vacate the dismissal and setting the same for hearing on December 15, 1965; (3) no order was entered on December 15, 1965, and the matter remained dismissed for want of prosecution; (4) sometime thereafter, on or about September 8, 1967, plaintiff's attorney wrote a letter to Judge William S. White in the Criminal Court forwarding the petition to vacate the dismissal order of November 24, 1965, and a copy of the letter and the petition was sent to the defendant's attorney; (5) the defendant filed an affidavit in opposition to the petition; (6) sometime thereafter, the order of November 24, 1965, was vacated by Judge White, but no copy of the order was ever sent to the defendant's attorney; (7) the first knowledge the defendant had that the order of dismissal was vacated occurred when he received notice on or about January 17, 1968, that the plaintiff was requesting the case be put on trial call; and (8) the order of November 24, 1965, giving plaintiff leave to file a motion to vacate entered without any knowledge to the defendant is a nullity.

An order was entered by Judge Ward on January 25, 1968, which read in part:

[T]he cause was dismissed for want of prosecution Nov. 24, 1965, and with no notice to the defendant leave was given plaintiff to move to vacate. . . . [N]o order of vacation . . . was entered on Dec. 15, 1965. . . . [P]laintiff wrote Judge White on or about Sept. 8, 1967, and petitioned to vacate said dismissal order with copies to attorney for the defendant. . . . [D]efendant filed an affidavit opposing said petition. . . . Judge White purported to enter an order vacating the dismissal . . . and no copy or other notice of the entry of said order was given the defendant and defendant's first knowledge of said order . . . was when he received a notice to put the matter on the trial call. . . .

Judge Ward ordered that the cause be dismissed and this appeal was taken from that order.

The plaintiff contends that an order of one judge cannot be collaterally attacked by a judge of equal, like and concurrent jurisdiction at a later date. Instead, the plaintiff maintains that the defendant's remedy would have been to appeal to ...


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