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Atlanta Nat. Bank v. Johnson Tractor Sales

FEBRUARY 25, 1971.

ATLANTA NATIONAL BANK, PLAINTIFF-APPELLANT

v.

JOHNSON TRACTOR SALES, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Logan County; the Hon. JOHN T. McCULLOUGH, Judge, presiding.

MR. JUSTICE CHAMBERLAIN DELIVERED THE OPINION OF THE COURT:

The defendant, Johnson Tractor Sales, (Nelson E. Johnson,) executed two promissory notes to Colaw Ford Sales which were endorsed to the plaintiff, Atlanta National Bank, an Illinois Banking Institution. The notes were subsequently entered in judgment by the plaintiff against the defendant. The trial court allowed a motion to vacate and set aside. Trial then was held before the court and judgment was entered on behalf of the defendant.

Plaintiff appeals on two grounds (1) that the trial court erred in setting aside the confession of judgment and (2) that the finding of the trial court in favor of the defendant is against the manifest weight of the evidence.

In order for a party to be able to open a judgment, he must comply with Supreme Court Rule 276, (Ill. Rev. Stat., 1967, ch. 110-A, par. 276) which states:

"A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Rule 191 for summary judgments, and shall be accompanied by a verified answer which defendant proposes to file. If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff's demand, the court shall set the motion for hearing. The plaintiff may file counter-affidavits. If, at the hearing upon the motion, it appears that the defendant has a defense on the merits to the whole or a part of the plaintiff's demand and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown * * *."

The requirement for the proper affidavits is contained in Rule 191, (Ill. Rev. Stat., 1967, ch. 110A, par. 191) which states:

"(a) Requirements. Affidavits in support of and in opposition to a motion for summary judgment and affidavits under Section 48 of the Civil Practice Act shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto * * *."

• 1 The trial court has wide discretion in granting a motion to set aside a judgment by confession. Pirie v. Carroll, 28 Ill. App.2d 181 (1960).

The defendant filed a petition with a proposed answer. No affidavits were initially filed. An affidavit was subsequently filed. Plaintiff moved to strike both on the grounds they failed to comply with Rule 191. The motion was denied.

• 2 While the petition did contain language that was surplusage and argumentative, and abundant with conclusions, it did contain sufficient facts to allege a prima facie defense, which warranted the trial court to vacate the judgment.

Consequently, the trial court did not err in opening the judgment by confession.

Thereafter, the cause proceeded to trial in which the judgment was set aside.

The defendant and Colaw Ford Sales, hereinafter referred to as Colaw, were engaged in the purchase and sale of motor vehicles.

The defendant would acquire a car from Colaw for resale and as security for the car would execute and ...


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