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Durgom Concrete Pipe v. Belvidere Highlands

MARCH 25, 1971.

DURGOM CONCRETE PIPE COMPANY

v.

BELVIDERE HIGHLANDS DEVELOPMENT CORPORATION ET AL. — (COUNTRYMAN LUMBER COMPANY, DEFENDANT AND COUNTER-CLAIMANT — APPELLEE,

v.

HOWARD SAVINGS AND LOAN ASSOCIATION, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Boone County; the Hon. WILLIAM R. NASH, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 26, 1971.

This is an appeal from an order denying a motion to vacate the entry of orders which were based upon the allowance of a petition under Section 72 of the Civil Practice Act.

The facts in the case show that Countryman Lumber Co., referred to as plaintiff herein, as a party defendant, filed an intervening petition and counterclaim in a suit instituted by Durgom Concrete Pipe Co. to foreclose a mechanic's lien. Soon after the petition was granted, the original suit was settled and Durgom's complaint was dismissed with prejudice. There remained the plaintiff's counterclaim against the Belvidere Highland Development Corporation (hereinafter referred to as Belvidere), City National Bank and Trust Co. of Rockford, Illinois, the First National Bank and Trust Company of Barrington (hereinafter referred to as First National), and Howard Savings and Loan Association. Only Howard Savings and Loan Association (hereinafter referred to as defendant), appeals.

Before the counterclaim was at issue, the plaintiff entered into a settlement agreement with Belvidere. The terms of the agreement were that plaintiff was to deposit a release and satisfaction document, and Belvidere was to deposit the sum of $10,000 with the First National. Upon completion of these acts, First National would deliver the $10,000 to the plaintiff and Belvidere would receive the release and satisfaction document. Prior to the fulfillment of the terms, plaintiff moved the court to dismiss its pending counterclaim with prejudice and, on May 14, 1969, an order was entered in compliance with the plaintiff's motion.

Belvidere failed to deposit the money and, approximately five months later, plaintiff filed a petition to set aside the order of dismissal. Various notices of the petition were sent to the attorneys for the parties involved, but none of the parties appeared at the hearing on the petition, nor did they appear at a later hearing set for proving damages on the plaintiff's reinstated counterclaim.

Defendant appeals the trial court's decision vacating the order of May 14, 1969, and the subsequent judgments entered in behalf of the plaintiff. Basically, it is contended that, for two reasons, the trial court erred in that: one, the plaintiff committed procedural error with regard to notices and, two, the petition was insufficient to grant the relief allowed. For the purpose of this appeal it will be necessary to consider only the second reason.

On this point, defendant argues that, even if we were to assume that the petition contained only well-pleaded facts supported by affidavit and that these facts were to be taken as true and no responsive pleadings were filed, still, relief could not be granted because the petition is so defective as to fail to state a cause of action under Section 72. Smith v. Pappas (1969), 112 Ill. App.2d 129; Muniz v. Wamsley (1970), 127 Ill. App.2d 410.

On the other hand, plaintiff argues that Section 72 is not limited to facts which, if known at the time of the judgment, would have prevented the entry thereof; that relief is available where the petitioner shows that, through no fault or negligence on its part, a judgment was obtained; that, in this case, the petition stated a cause of action because it alleged that plaintiff claimed a lien, that as an inducement to dismiss this suit, the attorney for Belvidere represented that $10,000 would be placed in escrow, and that in reliance, plaintiff dismissed its suit.

Section 72 provides for relief from a judgment after 30 days from the entry thereof where the petition is filed within two years of the date of the judgment. It replaces the relief previously available under various common law writs and in equity. The Section, and one of its functions, is described in Calabrese v. Hatlen Hgts. Sewer & Water (1966), 34 Ill.2d 483. There the court said, at page 485:

"Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1961, ch. 110, par. 72,) was designed to provide a simple but comprehensive procedure by which a litigant, after 30 days, might seek to be relieved from a final judgment or decree on grounds such as fraud, death, lack of jurisdiction, errors of law apparent on the face of the record, and the like, which formerly supported the granting of relief under a bill of review, a motion in the nature of a writ of error coram nobis and others. [Citation omitted.] One function of the section is to bring to the attention of the court matters of fact not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition, [citations omitted] and it was not intended to relieve a litigant from the consequences of his own negligence."

In Glenn v. The People (1956), 9 Ill.2d 335, the court said, at page 340:

"* * * The error of fact which the writ may be employed to correct includes such matters as the death of one of the parties pending the suit and before judgment; infancy where the party was not properly represented by a guardian; coverture, where the common law disability still exists; insanity at the time of the trial; and a valid defense which existed in the facts of the case but which, without negligence on the part of the defendant, was not made, having been prevented through duress, fraud or by excusable mistake. * * * The petition or motion under the statute is the filing of a new action, civil in nature, and it is necessary, as in any civil case, that the petitioner allege and prove a right to the relief sought. [Citation omitted.] Where the motion fails to state a cause of action or shows on its face that the petitioner is not entitled to the relief sought, it is subject to a motion to dismiss."

Also see, Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 505; Danforth v. Checker Taxi Co., Inc. ...


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