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Wolfe v. Endres

JULY 9, 1969.

DR. JOHN

v.

WOLFE AND HELEN L. WOLFE, PLAINTIFFS-APPELLANTS,

v.

JOHN ENDRES AND VIRGINIA ENDRES, DEFENDANTS-APPELLEES, AND HELEN GUILBERT, INC., HELEN GUILBERT AND JOHN D. WOLFE, DEFENDANTS.



Appeal from the Circuit Court of Cook County; the Hon. WAYNE W. OLSON, Judge, presiding. Reversed and remanded with directions. MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 11, 1969.

Dr. John V. Wolfe and his wife, Helen L. Wolfe, plaintiffs, appeal from an order granting John Endres and his wife, Virginia Endres, defendants, leave to appear and defend against a judgment entered by confession on a promissory note and from a judgment in favor of the defendants after a jury trial.

Plaintiffs contend: (1) the petitions to open the judgment by confession did not disclose a meritorious defense or diligence; (2) special interrogatories were inconsistent with the general verdict; (3) the verdict was not based on the instructions; (4) fraud was not alleged nor established by the evidence; and (5) the court erred in admitting parol evidence.

On February 27, 1963, in the Municipal Court of Chicago, plaintiffs secured a judgment by confession on a promissory note against Helen Guilbert, Inc., Helen Guilbert, John D. Wolfe, John Endres and his wife Virginia Endres in the amount of $16,622.48 and costs, which included $3,882.92 for interest and $872.02 attorney's fees. On May 8, 1963, plaintiffs caused writs of execution to issue and service was had on defendants on June 6, 1963; and on August 22, 1963 citations in supplemental proceedings were served upon defendants. On October 17, 1963 a verified petition filed by John and Virginia Endres moved the court to open the judgment by confession and alleged: (1) defendants executed the promissory note as agents of Helen Guilbert, Inc., and not in their individual capacities; (2) the note was given for a loan made to Helen Guilbert, Inc., and defendants did not receive any part of the proceeds; (3) defendant John Endres was not an active agent or officer of Helen Guilbert, Inc., and had never received any compensation or income from that corporation; (4) said corporation was indebted to defendant John Endres; defendant Virginia Endres was not associated with said corporation in any manner; (5) there was no consideration for them to execute the note in their individual capacities in that they received no consideration or benefits from the proceeds advanced by plaintiffs to Helen Guilbert, Inc.; and (6) plaintiffs were the parents of John D. Wolfe who was the son-in-law of Helen Guilbert (the other co-makers) and defendants are not related by blood or marriage to plaintiffs or the other individuals who executed the note and it is these individuals who received a consideration and not defendants.

A supplemental petition was filed in support of the initial petition and was executed by the attorney for defendants under a verification that his allegations were being made pursuant to information and belief. The supplemental petition alleged: (1) since the initial petition to open the judgment was filed, defendants had ascertained and were informed that a substantial part, if not all, of the indebtedness had been paid by one of the co-defendants; (2) that since the time the judgment by confession was entered there was an understanding by and between all of the parties that all matters would remain in status quo until such time as a settlement of the differences between the parties would be consummated; (3) contrary to said understanding plaintiffs filed a transcript of the judgment by confession with the Superior Court of Cook County and commenced citation proceedings in that court; (4) that as soon as defendants received notice of the citation proceedings, defendants took measures to vacate and set aside the judgment. On December 17, 1963, the court granted defendants leave to appear and defend. On October 6, 1966, after a jury verdict, judgment was entered in favor of defendants.

OPINION

We will first consider the order of December 17, 1963, giving defendants John and Virginia Endres leave to appear and defend. Judgment debtors Helen Guilbert, Inc., Helen Guilbert and John D. Wolfe sought no relief from the judgment.

Defendants' petition to open the judgment by confession was governed by the Civil Practice Rules of the Municipal Court of Chicago. Opening judgments by confession was regulated by Rule 2, § 23(2) *fn1 which provided in part:

"A motion to open a judgment by confession shall be supported by affidavit as provided by Section 15 of Rule 2 for summary judgments. . . . If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of plaintiff's demand and the court finds that defendant has been diligent in presenting his motion to open the judgment, the court shall then sustain the motion either as to the whole of the judgment or to that part to which a good defense is shown, and the case thereafter proceeds to trial upon the statement of claim, motion and affidavit and any further pleadings which are required or permitted."

Rule 2, § 15(1) provided:

"Affidavits . . . shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used."

See also Chapin v. Raven, 23 Ill. App.2d 512, 163 N.E.2d 229 (1959) (Abst).

An examination of defendants' initial petition recites a legal conclusion that defendants executed the note as agents of a corporation. There is no allegation reciting a lack of consideration for the ...


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