Appeal from the Municipal Court of Chicago, First Municipal
District of the Circuit Court of Cook County; the Hon. EUGENE L.
WACHOWSKI, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT. Plaintiff, Welfare Finance Corporation, appeals from the Circuit Court's order vacating its judgment against garnishee for $1,457.15 plus costs and from the subsequent judgment entered in its favor for $51.35.
On February 16, 1968, plaintiff obtained a judgment by confession against defendant Charles H. Bachman (a/k/a Harold C. Bachman) for $1,400 representing the unpaid principal and interest on a note executed by defendant on July 10, 1962. After the summons to confirm judgment was returned, "defendant not found" on February 16, 1968, an alias summons to confirm judgment was served upon Bachman by leaving a copy thereof with his employer, Ray-Car Motors Incorporated, on March 19, 1968. The judgment was confirmed on April 15, 1968, upon defendant's failure to appear.
Plaintiff then caused a wage deduction summons and affidavit with accompanying interrogatories to issue returnable May 20, 1968, which were served upon garnishee on April 19, 1968. Garnishee failed to respond to the interrogatories and a conditional judgment was entered against it for $1,457.15 plus costs. On May 22, 1968 garnishee was served with summons after conditional judgment to show cause why the judgment should not be made final. Garnishee failed to appear and the judgment was made final July 1, 1968.
While these proceedings as to the above wage garnishment were taking place, plaintiff also caused a second wage deduction summons and affidavit with accompanying interrogatories returnable July 24, 1968 to be served on May 22, 1968, the same date of service as the summons after conditional judgment. On June 7, 1968, garnishee in response to plaintiff's interrogatories in the second wage deduction summons replied, "not in our employ." On the basis of this answer garnishee was discharged as to the second wage deduction cause on June 24, 1968. Plaintiff then obtained an order vacating this dismissal, but, for want of prosecution, garnishee was again discharged on August 21, 1968.
On January 13, 1969, plaintiff filed an affidavit for garnishment against Bremen State Bank based upon the July 1, 1968 judgment in the first wage deduction cause. Garnishee then petitioned under Ill Rev Stats, c 110, § 72, Civil Practice Act, 1967, to vacate the judgment of July 1, 1968, alleging that it had been erroneously finalized in view of the fact that the answer to the interrogatory returnable June 24, 1968 had stated "not in our employ." Garnishee further alleged the discharges of June 24, 1968 and August 21, 1968.
The court granted garnishee's motion and vacated the conditional judgment of May 20, 1968 and the final judgment of July 1, 1968. Garnishee was then given leave to file an amended answer to the interrogatory returnable May 20, 1968. The amended answer was subsequently filed admitting that one Harold Bachman had worked for garnishee and itemizing payroll checks written in Bachman's favor from April 19, 1968 to May 24, 1968 totaling $458.39.
On February 13, 1969, the court entered judgment for plaintiff and against garnishee for $51.35. Plaintiff appeals the court's order vacating the judgment finalized on July 1, 1968 and the judgment of $51.35 entered in its favor. Plaintiff prays the latter be vacated and the former reinstated.
Plaintiff contends that the section 72 motion to vacate was improperly granted in view of the fact that garnishee failed to allege and prove diligence.
In Bartolini v. Popovitz, 108 Ill. App.2d 89, 246 N.E.2d 834 (1969) the court stated:
"Before a final judgment by default may be vacated, the defendant must not only show by petition and affidavit that he has a meritorious defense to the allegations contained in the complaint, but that he also exercised due diligence in presenting his defense."
The material averments of defendant-garnishee's petition allege:
"1. That on May 20, 1968 a conditional judgment was entered against Ray-Car Motors, Inc. in ...