APPEAL from the Circuit Court of Peoria County; the Hon. JOHN
A. WHITNEY, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is an appeal by Vincent Sigler, Defendant-Appellant, from a judgment of the circuit court of Peoria County denying his motion to vacate a judgment by default for $3,204.95 in favor of Meister Bros. Inc., Plaintiff-Appellee.
Prior to February, 1971, plaintiff had filed his mechanic's lien in McLean County with respect to money alleged to be due from the defendant Vincent Sigler on premises located in that county. Defendant disputed the claim and at the time discussed it with his attorney whose office is in Normal, Illinois and who is the same attorney representing defendant on this appeal.
On February 12, 1971, plaintiff filed this action in Peoria County seeking $3,204.95 damages for defendant's failure to pay for heating and plumbing supplies. The summons was served on defendant on February 25, and it directed defendant to appear on March 5, 1971. On that date the defendant neither having answered nor appeared nor requested a continuance, the attorney for plaintiff requested that a default order be entered which was done. The default order entered on March 5, 1971, provided the case be continued until March 12, 1971, "for filing proof of service and for entry of judgment." On March 12, 1971, defendant still not having appeared or answered, he was again defaulted and judgment for $3,204.95, the full amount of the claim, was entered.
On April 2, 1971, defendant filed his motion seeking to vacate the judgment by default and requesting leave to respond to plaintiff's claim. According to the affidavit filed in support of the motion, defendant admitted being served with summons on February 25 in McLean County but stated that due to press of business he inadvertently failed to notify his attorney of the receipt of summons until March 8, 1971. On the same date defendant's attorney called plaintiff's attorney in Peoria and was informed that judgment or default had been entered against defendant. On April 2, 1971, the date the motion to set aside the judgment was filed and set for hearing, defendant's attorney discovered that no final judgment had in fact been entered on March 5 but instead the matter had been continued until March 12, 1971. Defendant's attorney thereupon filed a supplemental affidavit regarding the telephone call with plaintiff's attorney which took place on March 8th in between the date of the default, March 5 and the date of final judgment, March 12. Additionally the affidavits indicated that defendant had a meritorious defense and also alleged improper venue. No counter-affidavits were filed by plaintiff.
On April 28, the trial court denied defendants motion and it is from such judgment that appeal follows.
• 1-5 The propriety of the court's decision is governed by Ill. Rev. Stat., 1969, ch. 110, par. 50(5), which provides, "The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable." With respect to relief sought in accord with the provisions of the foregoing statute the principal concern of the court is to see that right and justice is done. (Widucus v. Southwestern Electric Cooperative, Inc. 26 Ill. App.2d 102, 167 N.E.2d 799.) Granting relief is within the discretion of the court and although its discretion ought to be liberally exercised nevertheless relief may be denied where substantial justice does not so require. As indicated in Mieszkowski v. Norville, 61 Ill. App.2d 289, 209 N.E.2d 358, a reasonable excuse or due diligence as well as the absence of prejudice to plaintiff ought to be shown to justify the relief sought. Whether the trial court has abused its discretion may also depend on a showing that the relief sought is not based on frivolous claims or for the purpose of delay.
• 6 When we consider the facts in light of the foregoing authorities it is our conclusion the trial court should have granted defendant's motion. We do not believe defendant was guilty of culpable negligence or a wilful disregard of the court's process. The summons was served in a county other than that in which the suit was instituted a relatively short time before defendant was required to appear. In fact the time period was so short that plaintiff was not even able to file his proof of service on the return date and the court's entry of a default on said date without requiring such proof to be filed is at least questionable. The affidavit of defendant's attorney is uncontradicted with respect to his telephone conversation with plaintiff's attorney on March 8th, three days later, his inquiry concerning the status of the case and the failure of plaintiff's attorney to indicate that the case had been continued at his own request. Plaintiff argues in his brief that as an officer of the court defendant's attorney was bound to check the records and if he had done so he would have discovered that the continuance had been ordered. Such argument overlooks the uncontradicted assertion that defendant's attorney was misled by plaintiff's attorney and we can only conclude that defendant's attorney acted reasonably under the circumstances. Nor do we believe that a trial on the merits would result in any prejudice to plaintiff. No particular delay was involved and absent any showing to the contrary it does not appear that plaintiff's ability to prove his claim could have been affected.
For the foregoing reasons the judgment of the circuit court of Peoria County is reversed and remanded with directions to proceed in accord with the views expressed herein.
Reversed and remanded with directions.
SCOTT and DIXON, JJ., concur.