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Bartolini v. Popovitz

APRIL 1, 1969.




Appeal from the Circuit Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding. Judgment reversed and cause remanded with directions.


Plaintiff appeals from an order entered pursuant to defendant's amended section 72 petition to vacate a default judgment theretofore entered in favor of plaintiff and against defendant.

In May 1963 plaintiff filed a complaint against defendant Popovitz, a real estate broker, alleging he induced plaintiff to exchange certain real estate by means of fraudulent representations. Also named as defendants in the complaint were the other parties to the real estate transaction, William and Dorothy Schau. The complaint requested that the transaction be rescinded and canceled, and that plaintiff's property be restored to her.

Schau filed a motion to dismiss the complaint on June 15, 1963. Popovitz was served with summons on May 16, 1963, and an appearance was filed in his behalf by his first attorney on June 13, 1963. He apparently filed a motion to dismiss the complaint as well, although the motion does not appear in the record. On March 10, 1964, the Popovitz motion was overruled, said defendant failing to appear at the hearing on the motion. The Schau motion to strike was sustained and plaintiff was given leave to file an amended complaint. The amended complaint was filed on March 31, 1964.

On April 23, 1964, Schau again filed a motion to dismiss the amended complaint. On June 30, 1964, Schau moved the trial court to set the matter down for hearing and notice of that motion was served upon Popovitz's first attorney and upon plaintiff's attorney. Also on June 30th Popovitz's first attorney served notice that on that day he would request the court for leave to withdraw as attorney of record for Popovitz. Notice of that motion was addressed to the Schau attorney of record and to defendant Popovitz personally, and a copy thereof was mailed to Popovitz's home address by certified mail; no notice was addressed to plaintiff's attorney of the withdrawal of Popovitz's first attorney. Leave was granted the attorney to withdraw from the case. The trial court also continued the hearing on the pending Schau motion to dismiss the amended complaint.

On October 29, 1964, after several continuances of the matter obtained by plaintiff's attorney, the trial court sustained the Schau motion to dimiss and also set the trial of the case against Popovitz for November 9, 1964. On November 9th Popovitz failed to appear either personally or by attorney and plaintiff proved up her claim against him. On February 5 or 8, 1965, the trial court entered an ex parte default decree on motion of plaintiff, which recited in part that Popovitz failed to file an answer to the amended complaint and also failed to appear at the hearing. Judgment was entered for plaintiff in the amount of $14,873.28, the defendant being ordered to satisfy the judgment within 90 days from the date of the entry of the decree, "with interest and in default of such payment, execution shall issue."

On April 12, 1965, a verified petition to vacate the default judgment of February 1965 was filed on behalf of Popovitz by his second attorney, said petition setting forth that his first attorney had withdrawn from the case, which he did not learn until April 2, 1965, at which time he also received notice from plaintiff's attorney that the default judgment had been entered against him. The balance of the petition recited that Popovitz acted only as a real estate agent for the parties to the transaction and that he has a "good and meritorious defense to the plaintiff's complaint." The petition prayed that the default judgment be vacated and that leave be granted to Popovitz to file his answer and have the matter set down for hearing on the merits. Plaintiff filed her verified answer to the petition to vacate, and the matter was set for hearing on May 4, 1965.

On May 4, 1965, the matter was continued to June 3rd on motion of Popovitz's second attorney. On June 3rd, again on motion of Popovitz's attorney, the court continued the hearing on the petition to vacate and plaintiff's answer thereto, to July 12th, the order reciting that the matter "must be disposed of on that date." On July 12th the matter was again continued to October 5th on motion of Popovitz's attorney.

On October 5, 1965, the Popovitz petition to vacate the amended complaint was dismissed and Popovitz was given leave to file an amended petition within ten days. The order also recited that the hearing on the amended petition to vacate was set for October 29, 1965, "without further notice."

On October 29th the following order was entered by the trial court:

"On motion of plaintiff to deny defendant's amended petition to vacate judgment heretofore entered, and the defendant having failed to file said amended petition to vacate, as per order of court on October 5, 1965, and defendant having failed to appear in open court, and plaintiff having appeared this day,

"It Is Hereby Ordered:

"That defendant's amended petition be and is hereby denied (sic) and judgment heretofore entered be and is hereby made final."

After separate notices were sent to Popovitz and to his second attorney on April 12, 1966, plaintiff presented a petition before the trial court on April 26th to show cause why Popovitz should not be held in contempt of court for failure to comply with the court's final decree and judgment. On April 26th neither Popovitz nor his attorney appeared in court and the matter was continued to May 26th. On May 26th Popovitz personally appeared in court in response to a letter from plaintiff's attorney, but plaintiff's attorney not ...

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