APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM
W. BRUSSELL, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
On September 5, 1968 plaintiff commenced an action at law, alleging that defendants had defaulted on the payment of a promissory note, and prayed for judgment on the note plus interest. The note was secured by a second mortgage on property which defendants purchased from plaintiff in 1961. The first mortgage on the property was held by Sterling Savings & Loan Association.
In considering the issues presented in this case, prior proceedings in chancery court concerning the property must be discussed. On April 18, 1967, Sterling Savings & Loan Association filed a suit in chancery for foreclosure of its first mortgage. (67 Ch 2024). Bernhardt, as holder of a second mortgage on the property, petitioned the court to enter as a defendant. On March 4, 1968 the petition was granted, and Bernhardt filed his answer in a foreclosure suit. The answer set up the amount owed Bernhardt by Fritzshalls on the note, but did not pray for affirmative relief against the Fritzshalls. Bernhardt's answer requested only that the foreclosure suit be dismissed.
The chancery court entered a decree of foreclosure on April 16, 1968, which stated that Sterling Savings & Loan Association had a prior lien on the property, and that all defendants' liens were subordinate. The decree also ordered the sale of the property to satisfy Sterling Savings & Loan's lien, and ordered that any surplus from the sale be brought before the court for further distribution. The decree did not determine the validity of, nor did it even mention, Bernhardt's claim against defendants.
On July 2, 1968 Bernhardt went before the same chancery court and filed a petition for judgment on the note as set out in his answer of March 4, 1968. Bernhardt stated that his answer was in the nature of a cross-bill and defendants had not answered; therefore, defendants were in default. On August 1, 1968 defendants filed a motion to strike the petition on the basis that the foreclosure decree was a final order which could only be attacked by petition within 30 days of entry or by a section 72 motion.
On November 15, 1968, after the case at bar was filed, Bernhardt filed a motion in chancery to withdraw his petition for judgment, and such motion was granted, with prejudice, on the grounds that the same cause was pending at law. The affidavit of the chancellor stated that he granted the withdrawal with prejudice to ensure that defendants would not be burdened with litigation in different courts, and also to ensure that plaintiff did not return to chancery after his action at law.
Before the withdrawal petition in the chancery proceeding was granted, defendants filed a motion to dismiss the case at bar under section 48(1)(c) of the Civil Practice Act. *fn1 The motion alleged that a prior suit was pending in chancery. On December 26, 1968, after the withdrawal in chancery, the trial court dismissed defendants' section 48 motion. On April 18, 1969 plaintiff filed a motion for summary judgment on the note, and on February 18, 1971, the court granted the motion.
Defendants appeal and state the following grounds for reversal of the order of summary judgment:
1) The plaintiff's delay in calling for a hearing on his motion for summary judgment is grounds for denying the motion. Rules of the Circuit Court of Cook County, Part 2, pars. 2, 3 provide that when a party making a motion does not call for hearing on the motion within 90 days of filing, the court may deny the motion because of the delay;
2) The dismissal of defendants' section 48 motion was erroneous, because suits for the same cause were pending at law and in chancery;
3) The issue of defendants' liability to plaintiff was in issue in the foreclosure suit, and such decree was res judicata as to an action at law on the note;
4) The withdrawal of plaintiff's petition, with prejudice, in chancery was an adjudication on the merits and thus barred plaintiff's suit at law.
• 1-3 The defendants' first contention, that plaintiff's motion for summary judgment should have been denied because of his delay in calling for a hearing, is untenable. Rules of the Circuit Court of Cook County, Part 2, Pars. 2, 3 provide that the court may deny the motion because of delay. Such denial or dismissal is discretionary with the trial court, and we will not upset the trial court's ruling in the absence of facts constituting an abuse. Defendants have failed to provide any facts which would reasonably constitute such an abuse by the trial court. Under these ...