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Federenko v. Builders Plumbing Supplies

APRIL 6, 1970.

NICK FEDERENKO, PLAINTIFF-APPELLANT,

v.

BUILDERS PLUMBING SUPPLIES, INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON and the Hon. ABRAHAM W. BRUSSELL, Judges, presiding. Appeal No. 52,346 is remanded with directions. Appeals Nos. 52,792 and 53,001 are dismissed without prejudice.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Plaintiff sued for injuries allegedly suffered as a result of defendant's wilful violation of the Structural Work Act of Illinois. Defendant answered the complaint in due course. On January 17, 1967, the action was dismissed for want of prosecution due to the failure of plaintiff or his attorney to attend three pretrial conferences. On February 20, 1967, the trial court denied a motion to vacate the order of dismissal filed within thirty days. Plaintiff appealed from both orders (appeal No. 52,346). Under the provisions of section 24(a) of the Limitations Act, plaintiff refiled his suit within one year, and on October 4, 1967, the trial court dismissed the second action because section 24(a) was not applicable to a dismissal for sanctions and under Supreme Court Rule 273 the dismissal of the first suit operated as an adjudication on the merits. Plaintiff appealed from this order (appeal No. 52,792). After plaintiff's original cause of action was dismissed, plaintiff filed a petition pursuant to section 72 of the Civil Practice Act to vacate the original dismissal order. The plaintiff appeals from the denial of this petition (appeal No. 53,001).

The separate appeals taken from each of these orders were consolidated here for hearing. For convenience and clarity the appeals are disposed of separately.

APPEAL NO. 52,346

On July 12, 1963, plaintiff filed his complaint against defendant, alleging that defendant failed in its duty under the Structural Work Act to provide him with a safe place to work. Plaintiff had originally retained the law firm of Viner & Hertzberg (later known as Sussman & Hertzberg) to represent him in the action. Defendant filed its appearance and answer on August 1, 1963, and the case was called for a pretrial conference before Judge James D. Crosson on December 12, 1966, notice being published in the Chicago Daily Law Bulletin. Counsel for defendant appeared at the pretrial conference, but no one appeared for plaintiff and, at the request of defendant's attorney, the pretrial conference was continued until December 27, 1966.

On December 12, 1966, defendant sent a letter to plaintiff's attorneys of record, Viner & Hertzberg, notifying them of a new date and requesting that they be present so that the pretrial in the matter could be held. On December 15, 1966, the law firm of Cooney & Stenn sent a letter to defendant's attorneys, as follows:

"We are handling this case. Can you get the case back on the trial call for December 27 so we have time to study the file."

Again on December 27, 1966, no one appeared for plaintiff, and defendant's attorney explained to Judge Crosson what had happened. Judge Crosson, noting that the firm of Cooney & Stenn were not attorneys of record and further noting that no one had appeared for plaintiff, indicated to defense counsel that he wanted to dismiss the case. Defendant's counsel told him that someone representing the plaintiff would be present at the next pretrial, January 17, 1967. On January 17, 1967, again no one appeared for plaintiff at the pretrial conference, and the court entered the following order:

This cause coming on to be heard upon the regular call of cases for pretrial; the Court finds that it has jurisdiction of the parties hereto and the subject matter hereof; the plaintiff having failed to answer said call in person or otherwise appear in accordance with order or rules of pretrial procedure;

IT IS HEREBY ORDERED THAT the above entitled cause be and the same is hereby dismissed for want of prosecution under the provisions of Supreme Court Rule 219(c).

On that day counsel for defendant sent a letter to Cooney & Stenn and to Viner & Hertzberg, informing them that Judge Crosson had entered an order of dismissal and enclosed a copy.

On February 7, 1967, and within thirty days from the entry of the order of dismissal, Richard Neville, an attorney from the office of Cooney & Stenn, filed a verified "Petition" within thirty days to reinstate the cause and to assign it for a date certain for a further pretrial hearing. The reasons given for the failure to attend the pretrial conferences were stated in the "Petition" as "due to a misunderstanding as to the responsibility between the two law firms with regard to handling the pretrial discovery of the case." Defense counsel filed a verified answer to the petition, outlining what defense counsel had experienced in the three pretrial hearings and opposed the petition not "because of the inconvenience and cost to them" but because counsel felt the plaintiff's attorneys had shown an "utter disregard for the pretrial procedure as well as the Court itself."

A hearing was had on the petition to reinstate the cause on February 20, 1967, and the court denied the petition. On March 17, 1967, plaintiff filed notice of appeal from this order and the original dismissal order (appeal No. 52,346).

On appeal plaintiff contends that the trial judge abused his discretion in denying plaintiff's motion to vacate within thirty days under § 50(6) of ...


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