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Libert v. Turzynski

SEPTEMBER 18, 1970.

SAMUEL A. LIBERT, PLAINTIFF-APPELLEE,

v.

STANLEY TURZYNSKI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WILLIAM M. BARTH, Judge, presiding. Judgment reversed and cause remanded with directions.

GOLDENHERSH, J.

Defendant, Stanley Turzynski, appeals from the order of the Circuit Court of Cook County denying his petition brought under section 72 of the Civil Practice Act (c 110, § 72, Ill Rev Stats 1967) to set aside an order of default and a judgment entered upon a jury verdict in the amount of $15,000.

Defendant contends that "substantial justice" requires that the ex parte judgment be set aside, and the trial court erred in failing to grant him relief pursuant to section 72.

On August 6, 1963, plaintiff, a physician, filed a complaint for libel against defendant, a physician, alleging that defendant had published a letter or document containing defamatory statements in regard to plaintiff. The transaction out of which the difficulties between these parties arose is reviewed in Turzynski v. Libert, 122 Ill. App.2d 352, 259 N.E.2d 295. Defendant, represented by counsel, filed an answer denying the allegations of the complaint.

On October 22, 1964, by leave of court, Raymond I. Suekoff appeared as attorney for defendant in substitution for defendant's original attorney, David E. Bradshaw. On April 19, 1965, Raymond I. Suekoff was granted leave to withdraw as defendant's attorney. On April 30, 1965, by leave of court, attorney Stanley Werdell entered his appearance for defendant. On January 11, 1967, at the pretrial conference, Raymond I. Suekoff was given leave to reappear for defendant. On December 15, 1967, Edelstein & Lewis, attorneys, requested and were granted, leave to file their appearance as attorneys of record for defendant. On January 30, 1968, Edelstein & Lewis moved for leave to withdraw as the attorneys for defendant and their motion was allowed. Defendant's petition and supporting affidavit state that on September 20, 1968, upon becoming aware of the fact that his last attorneys had withdrawn he filed in the record the following note:

"Please notify the defendant Stanley Turzynski 6165 Archer Chicago 38/ Ill. PO 7-7373

"if this case will come up before the defendant will retain an attorney.

Thank you"

On October 9, 1968, the matter was called for trial before the Honorable William Barth. Defendant failed to appear. The court attempted to call defendant by telephone, but was unable to complete the call. The record reflects that the court unwittingly transposed digits in the defendant's telephone number, calling PO 7-3773 instead of PO 7-7373. The court then directed that the jury find for the plaintiff against defendant for $15,000 and costs, and that malice was the gist of the action. Judgment was entered on the verdict.

On December 19, 1968, defendant, by his present attorneys, filed a petition pursuant to section 72 of the Civil Practice Act to vacate the judgment of October 9, 1968. The petition was supported by his affidavit alleging that he had no notice of the trial setting, his first notice of the judgment was on December 11, 1968, when he was served with an execution, and he has a meritorious defense to the action. The plaintiff did not file a responsive pleading.

On January 7, 1969, a hearing on the petition was held before the trial judge. No testimony was taken, and the petition was denied.

A petition under section 72 to set aside a default judgment must set forth sufficient facts to show a meritorious defense and due diligence on the part of the petitioner. Burkett v. Downey, 102 Ill. App.2d 373, 242 N.E.2d 901.

[2-4] Defendant's petition states that he has a meritorious defense to the plaintiff's cause of action, alleging, inter alia, that the alleged defamatory matter was not communicated to a third person. In the absence of a responsive pleading to defendant's petition, the facts well pleaded must be taken as true. Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348; Stidham v. Pappas, 78 Ill. App.2d 402, 222 N.E.2d 318. An essential element of libel is a publication by the author, Ginsburg v. Black, 237 F.2d 790, and prima facie, defendant's petition shows a meritorious defense.

The question remains whether the defendant pleaded sufficient facts in his petition and accompanying affidavit to show that his failure to appear was not ...


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