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Bennett v. Gollant

JULY 7, 1970.

MARGUERITE M. BENNETT, PLAINTIFF-APPELLANT,

v.

MARYANE GOLLANT, ALIAS MARYANE GALLANT, INDIVIDUALLY, AND D/B/A FIFTH SEASON OF FASHION, AND FIFTH SEASON OF FASHION, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. JOSEPH B. HERMES, Judge, presiding. Reversed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 9, 1970.

Marguerite Bennett, the plaintiff, had worked in a dress shop which was owned and operated by the defendant, Maryane Gollant. The defendant discharged the plaintiff in May 1966, and later invited her to come to the shop to collect money due her. When the plaintiff arrived, the defendant had her arrested on a charge of disturbing the peace. The plaintiff was later discharged from the court. She filed a complaint in two counts.

In Count I the plaintiff claimed she was entitled to salary earned at the time of the discharge, and that she was entitled to money wrongfully withheld by her employer. She claimed that $630 had been withheld for income tax and social security, but that only $396.31 had been paid into plaintiff's account with the government. The complaint also alleged that the false swearing of the warrant for her arrest and her actual arrest were defamatory; that the arrest was used for the improper purpose of covering up her just claim for money due her. The prayer for relief was in the amount of $5,000 damages and $1,000 attorney's fees, as well as loss of time and wages incurred by her being compelled to attend court hearings as a result of the false charges. In her second count plaintiff sought punitive damages in the amount of $3,000, based on a special finding that malice was the gist of the action.

The suit was filed July 13, 1966. Summons was returned as having been personally served on the defendant on July 19, 1966. The return date was August 18, 1966, but no appearance or answer was filed by or on behalf of defendant by that time. On November 16, 1966, an order of default was entered against the defendant. Notice of the default and of a December 29, 1966 proveup was mailed to defendant by plaintiff's attorney. Judge Horan heard plaintiff's evidence and entered a judgment against the defendant for $9,381.69, as well as a special finding that malice was the gist of the action. Costs were charged to the defendant and an order was entered that execution issue against the body of the defendant.

The defendant failed to appear at a citation hearing, although a deputy sheriff's return indicated that she was personally served with notice of the hearing. On August 16, 1967, the plaintiff sued out a writ of capias ad satisfaciendum, which was delivered to the sheriff on August 18, and on August 22, the sheriff notified the defendant. The defendant surrendered to the sheriff and appeared before Judge Olson on September 6, 1967. The hearing was continued for three weeks upon defendant's prayer for additional time to raise the money to pay the judgment.

On the continued date, the defendant filed a petition seeking to have the judgment vacated and the capias quashed. A hearing was set over for two days, and on the appointed day Judge Hermes indicated for the record that for the sake of his ruling he would assume that the defendant had been properly served. He then entered an order vacating the judgment and quashing the capias. This appeal is taken from that order.

The following is the petition filed by defendant under the provisions of section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 72):

Now comes the Defendant, MARYANE GOLLANT, and says:

1. That an ex-parte judgment was entered in this cause on behalf of the Plaintiff against the Defendant.

2. That the Defendant, MARYANE GOLLANT was never served with summons in this case, and the first knowledge she had of the pendency of this suit is when she received a letter from the sheriff's office notifying her that if she did not appear in court, a warrant would be issued for her arrest. Said letter was received by the Defendant on August 28, 1967, notifying your Petitioner to appear on September 6, 1967.

3. That your Petitioner appeared in Room 1307 on said September 6, 1967, and was first informed that a judgment was entered against her.

4. That the Plaintiff in his cause of action failed and omitted to ask for a body execution against the Defendant in his Complaint at Law, and he is therefore ...


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