Appeal from the Circuit Court of Cook County; the Hon. WAYNE
W. OLSON, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. Plaintiff appeals from an order vacating a default judgment entered against defendants and setting the case for trial.
On October 28, 1967, plaintiff filed a complaint alleging that defendants breached a contract which granted plaintiff an exclusive concession for a cigarette vending machine and claiming loss of profits in the sum of $5,563.12. In their answer defendants admitted that they had entered into a contract with plaintiff but alleged that the contract lacked mutuality and consideration and was no longer in effect since it had expired.
On April 15, 1968, a portion of defendants' answer was stricken by agreement, and defendants were given thirty days to answer or plead over. The record does not indicate which portions of the answer were stricken and which remained in effect.
On October 1, 1968, plaintiff filed a notice of motion in which it requested that a default judgment be taken against defendants "for want of answer." *fn1 The hearing on plaintiff's motion was transferred from Room 1307 to Room 1310 instanter. In Room 1310 a default judgment for $5,563.12 and costs was entered in favor of plaintiff.
On December 13, 1968, defendants filed a motion to vacate the default judgment, and a hearing was to be held thereon on December 23. However, due to the illness of defendants' counsel the motion was not heard.
On February 4, 1969, defendants filed a petition in support of their motion to vacate. The petition alleged that defendants had a meritorious defense to plaintiff's cause of action "in that there was a failure of consideration, rescission, lack of mutuality and a repayment of the supporting loan upon which the contract was based and acceptance by the plaintiff of the loan repayment." The petition also alleged that defendants had no notice of any hearing on October 1, 1968, the date on which the default judgment was entered; that plaintiff's counsel had set a deposition to be taken on October 11, 1968, at 1:00 p.m.; that defendants and their attorney were present; that plaintiff's counsel left a message that the deposition would not proceed; that plaintiff's counsel never informed defendants that a default judgment had previously been entered; and that defendants' attorney had been diligent. Plaintiff filed a motion to strike the petition, thus questioning only the legal sufficiency of the facts alleged in the petition. Hawthorne Paper Sales Co. v. Kolf, supra.
At the hearing on defendants' petition, which was considered as a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72) defendants' counsel stated that he never received notice of plaintiff's motion for default judgment; that defendants were not informed of the default judgment at the deposition scheduled for October 11, 1968; and that defendants first learned of the default in December 1968 when they were served with a citation to discover assets.
Plaintiff's attorney stated that he personally took the notice of motion for default to the office of defendants' counsel and that one of the girls at the desk initialed it. The notice was initialed "P.K." or "R.K." and signed Milton J. "Coleman" or "Koleman." The court noted that this was an incorrect spelling of the name of defendants' attorney which was Kolman. Defendants' counsel then told the court that none of the secretaries in the office had the initials "P.K." or "R.K." *fn2
Plaintiff's attorney also told the court that he was not informed that defendants were present for the October 11, 1968, deposition. He introduced a copy of a letter which he allegedly sent to Mr. Kolman on October 8, 1968. The letter read:
"Mr. Milton J. Kolman "Attorney at Law "33 N. La Salle Street "Chicago, Illinois
"I shall not be able to proceed with the deposition of Jerry Norris and Jack David on October 11, 1968 pursuant to the ...