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Frandsen v. Anderson

APRIL 7, 1969.

NIELS D. FRANDSEN, MARIE J. FRANDSEN, HENNING D. FRANDSEN, AND NIELS D. FRANDSEN FOR THE USE AND BENEFIT OF MARIE J. FRANDSEN, JANE FRANDSEN, A MINOR, KAREN FRANDSEN, A MINOR, AND GAYLE FRANDSEN, A MINOR, BY THEIR MOTHER AND NEXT FRIEND, MARIE J. FRANDSEN, PLAINTIFFS-APPELLEES,

v.

JOHN R. ANDERSON, ET AL., DOING BUSINESS AS MORGAN'S DOUBLE O TAP, ALSO KNOWN AS HAPPY AND JOHN'S PLACE, EDWARD S. PRATSER, D/B/A PRATSER'S SILVER SADDLE AND EDWARD S. PRATSER AND ROSE

v.

PRATSER, ROBERT C. FILWETT, D/B/A THE 440 LOUNGE AND ANTHONY B. JABLONSKI AND FRANCES JABLONSKI AND/OR ROBERT C. FILWETT, AND CLARENCE A. HONNEMAN, D/B/A STARLITE INN AND ROSTEN WALKER, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. HARRY D. STROUSE, JR., Judge, presiding. Appeal dismissed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 19, 1969.

This action involves the propriety of a section 72 (Ill Rev Stats 1967, c 110, par 72) petition, filed in this action by Gates W. Clancy, an attorney. He was not named as a party in the proceeding.

The original action arose out of an automobile accident which occurred in Lake County in November, 1962. The plaintiffs — Niels D. Frandsen, as driver, and his family, as passengers — were riding in the Frandsen car, which was involved in a collision with a car driven by John R. Anderson.

In September, 1963, the plaintiffs filed an amended complaint, which joined as additional defendants persons who allegedly sold intoxicating liquor to John R. Anderson on the date of the accident, or who owned some interest in the taverns in question. Among the additional defendants were Mary C. Morgan and Stanley Morgan, her husband (subsequently deceased), who were alleged to have been "owners in part, and contract sellers" of a certain tavern known as Morgan's Double O Tap. The contract purchasers of the tavern, John and Gladys Marie Fredericks, were also joined as defendants.

On November 12, 1963, Clancy filed his appearance for the Morgans, and also filed an answer to the amended complaint on their behalf, wherein it was admitted that the Morgans "were and still are the owners, in part, and contract sellers of the premises" in question.

On November 22, 1963, the plaintiffs filed a second amended complaint which joined additional dramshop defendants. The allegations in the second amended complaint, with reference to the Morgans, were identical with those made in the amended complaint, to which answer had been filed by Clancy, on their behalf. A copy of the second amended complaint was mailed to Clancy by the attorneys for the plaintiffs.

Clancy filed an answer thereto for some of the newly-joined defendants, but did not answer the second amended complaint on behalf of the Morgans.

On March 31, 1965, the Circuit Court of the Seventh Judicial Circuit, Sangamon County, entered an order restraining the Lincoln Casualty Company, its officers, agents, directors, employees and all other persons, from transacting any company business or disposing of its assets or property until further order of the court. Lincoln was the insurer for the Morgans.

On April 21, 1965, Clancy notified the Morgans by letter that Lincoln had been enjoined from conducting any further business; that, as the attorney retained by Lincoln, he could not further represent them in that case; and that, if they wished to have him continue to represent them, they should contact his office within thirty days concerning arrangements for the payment of his fees.

On June 7, 1965, Clancy asked leave to withdraw as attorney for the dramshop defendants whom he represented — including the Morgans. The court refused such request. Clancy then filed a motion to vacate the order of June 7, which recited the foregoing pertinent facts. On June 11, 1965, the court heard the motion to vacate, and refused the request because Clancy claimed an attorney's lien on his files and would not turn them over to other counsel for the dramshop defendants without an arrangement for paying his fees. Neither the Morgans, nor anyone on their behalf, requested their file and, after June 11, 1965, Clancy made no further appearance for them until February 9, 1968, when he filed the Section 72 petition in question.

On June 28, 1965, the driver of the other automobile and its owner were dismissed from the proceeding upon payment of $20,000 to Niels D. Frandsen and Marie J. Frandsen. In October of 1965, the remaining dramshop defendants, other than the Morgans, were also dismissed, and the sum of $22,000, which was received from them, was allocated by the court to Niels D. Frandsen and Marie J. Frandsen, individually and as guardian of Jane, Karen and Gayle Frandsen, minors.

Counts III, IV, V and VI, of the second amended complaint, which related to the Morgans, prayed judgment against them and in favor of the following named plaintiffs, in the following amounts:

Niels D. Frandsen, for personal injuries, $15,000; Niels D. Frandsen, for property damage $15,000; Niels D. Frandsen, for the use and benefit of his wife, Marie J. Frandsen, and his three children, for loss of support, ...


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