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Stewart v. Beegun

JUNE 2, 1970.

FLOYIDA STEWART, AS ADMINISTRATRIX AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EARL STEWART, DECEASED, PLAINTIFF-APPELLEE,

v.

MAX E. BEEGUN AND ALICE BEEGUN, DEFENDANTS-APPELLANTS, AND MORRIS ROZEN AND WOLIN-LEVIN, INC., DEFENDANTS.



Appeal from the Circuit Court of Cook County; the Hon. PHILIP A. SHAPIRO, Judge, presiding. Order affirmed.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order denying a petition filed by Max E. Beegun and Alice Beegun pursuant to section 72 of the Civil Practice Act. The petition sought to vacate a judgment entered against the Beeguns and Morris Rozen, in a wrongful death action brought by plaintiff as administratrix of the estate of her deceased son, Earl Stewart. That judgment was affirmed by this court upon a direct appeal. (See 126 Ill. App.2d 120, 261 N.E.2d 191.)

The petition alleges in substance that the Beeguns, on or about January 7, 1954, became the beneficial owners of the seller's interest in a contract for the sale of a parcel of real estate, title to which was held under a land trust. The property is improved with a six-story, 67-unit apartment building and was situated on the south side of Chicago. The Beeguns allege in their petition that their interest in the premises was purely as security for the payments provided for in the contract of sale, and that at no time had they entered into the actual possession or control of the property.

The petition further alleges that the purchaser's interest in the contract of sale was assigned to Morris Rozen on or about April 16, 1961, who then entered into immediate and complete control, possession and management of the premises. It is alleged that Rozen was acting in such capacity, through his duly authorized agents, on the day of October 30, 1963, when plaintiff's deceased, a tenant in the building, was fatally injured in the passenger elevator serving the building.

The petition alleges that plaintiff filed her complaint on December 18, 1963, naming only the trustee under the land trust as defendant in the action, that the trustee notified the Beeguns of the pending action and requested the name of the insurance carrier holding coverage on the premises, and that the Beeguns thereupon notified the trustee that the "proper party" to notify of the action was Morris Rozen, the contract purchaser. A copy of the notice was sent to Rozen's attorneys.

An amended complaint was filed naming the Beeguns as defendants. The Beeguns forwarded a notice thereof to the insurance carrier, and sent the complaint and summons to Rozen. In May 1964 an appearance and an answer were filed on behalf of the Beeguns by counsel retained by the insurance carrier. The Beeguns allege in their petition that they were not supplied with a copy of that answer, nor did they have knowledge of the contents thereof.

In September 1964, Max Beegun was notified of and appeared for a deposition taken by plaintiff's attorney. It is alleged in the petition that at that time he advised his counsel that the Beeguns were simply the contract sellers of the property, that they had neither possession nor control of the premises at the time of the mishap, and that the owner of the purchaser's interest in the contract was Morris Rozen.

Shortly thereafter a second amended complaint was filed alleging the Beeguns to be the owners of the property. An answer was filed, denying their ownership of the property and affirmatively alleging that they were the beneficiaries under a land trust. The Beeguns allege in their petition that they were not consulted with regard to the answer filed to the second amended complaint and that they had no knowledge of the contents thereof until after the entry of the judgment against them.

The Beeguns further allege in their petition that together with their answers to plaintiff's interrogatories received by their counsel and forwarded to them, they requested their counsel to send them copies of all pleadings and other matters filed in the case. They allege that this request was not complied with, and further allege that the last communication which they had from their attorney was in February 1965.

The trial of the wrongful death action was had on March 8, 1966. The Beeguns allege in their petition that they never received notice that the matter had been set for trial, and that they did not appear at the trial as a result.

The issues were found by the court sitting without a jury against the Beeguns and Rozen and in favor of the plaintiff, and judgment was entered accordingly. A post-trial motion was filed and denied on April 19, 1966, and the Beeguns allege in their petition that they never received notice thereof. Notice of appeal was filed thereafter, and the Beeguns also allege in their petition that they received no notice of the filing thereof.

The section 72 petition alleges that it was not until July 28, 1967, that the Beeguns first learned of the judgment against them and of the pending appeal. Max Beegun, an attorney at law practicing in the Chicago area, had appeared in court on a matter unrelated to the instant case and spoke to the attorney whose office had been engaged by the insurance carrier to prepare the appeal. It is alleged in the petition that the Beeguns thereupon engaged their own attorneys to fully investigate the matter.

On September 1, 1967, the Beeguns received a notice of motion from counsel retained by the insurance carrier for leave to withdraw as counsel; the motion was allowed. The notice of motion was immediately forwarded to the Beeguns own attorneys. It further appears that the original brief filed in the wrongful death appeal had been filed in June 1967 by counsel retained by the insurance carrier, but that the reply brief filed therein was filed by counsel other than the one originally retained.

On October 9, 1967, the Beeguns received notice that the insurance carrier was no longer in operation, that its functions had been taken over by the State Director of Insurance, and that it was no longer connected with the wrongful death action. They were also notified that the insurance policy issued by the carrier no longer stood as a ...


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