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Accurate Home Supply, Inc. v. Malpede

JUNE 4, 1973.

ACCURATE HOME SUPPLY, INC. ET AL., PLAINTIFFS-APPELLEES,

v.

GERARDO MALPEDE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendants from a decree foreclosing a mechanic's lien on property of the defendant Jennie Malpede and entering a personal judgment against the defendants Nicholas and Annette Ferri, who were tenants, thereon.

On January 14, 1970, the corporate plaintiff and its president (hereinafter called plaintiff) filed suit against Gerardo Malpede, his wife Jennie Malpede, their daughter Annette Ferri and her husband Nicholas Ferri to foreclose a mechanic's lien on certain improved real estate owned by the Malpedes and occupied by them and the Ferris. The sheriff's return shows personal service on Annette and abode service on the others by serving her as a member of their families on January 24, 1970, and by mailing.

On July 29, 1970, notice was given by mail to all four by the plaintiff's attorney that on August 6, 1970, he would move to default them for failure to appear or answer. On that date an attorney, Joseph A. Malek, appeared and he was given leave to file an appearance and answer for the four defendants within 21 days. On September 29, 1970, the case was dismissed for want of prosecution on a call of the calendar.

On October 20, 1970, the plaintiff's attorney sent written notice by mail to the said attorney (who never did file an appearance or answer) that he would, on October 23, 1970, move to vacate the said dismissal and to default the defendants for failure to plead or answer. The court on that day vacated the dismissal, defaulted the defendants, ordered that the complaint to foreclose be taken as confessed and ordered that the matter be proved up on the regular motion call.

Thirteen months later, on November 30, 1971, both attorneys met in court to prove up the plaintiff's claim. Attorney Malek initially stated that he had had little cooperation from his client Nicholas Ferri and that he had not talked to the Malpedes or advised them that their property was in jeopardy and asked for a continuance so that he could notify them by registered mail that he was asking leave to withdraw as their attorney. The court denied a continuance and suggested that he move to withdraw later. The plaintiff's attorney then proceeded with the prove up, at the conclusion of which attorney Malek told the court that someone had, with his permission, used his name on an appearance, and that, although he had written them once in about September of 1970, he had never seen or had any contact with any of his clients since that time.

On December 2, 1971, attorney Malek served notice by mail on all four clients that on February 14, 1972, he would ask leave to withdraw as their attorney but on December 14, 1971, on the basis of said notice for February he was given leave to withdraw as their attorney.

On December 29, 1971, attorneys Adamowski, Newey and Riley moved for leave to file their appearance as attorneys for the defendants and to vacate the judgment "heretofore entered" (actually none had as yet been entered). An order was entered substituting them as attorneys, entering the motion to vacate, giving the defendants until January 28, 1972, to file supporting data, giving the plaintiffs until February 19, 1972, to file memorandum in opposition and conditioning the order upon the defendants' paying $250 in attorney's fees by February 1, 1972. It recited that the order was without prejudice to the plaintiff's right to present the decree.

On January 7, 1972, without any proof of service of notice of such a motion, the plaintiff's attorney presented a decree, which motion was entered and continued to January 13, 1972, without further notice. On that date a decree of foreclosure was entered against all four defendants including personal judgments against Nicholas and Annette Ferri for $3,158.14 plus costs. An oral motion to vacate was entered and continued to February 22, 1972, but the order of December 30, 1971, except par. 4 (relating to presenting a decree) was reentered and affirmed.

On February 10, 1972, after paying the $250 attorney's fees required by the order of December 30, 1971, Nicholas Ferri filed his affidavit stating in substance, that he employed attorney Malek to defend the action and delivered all papers to him; that Malek never asked for any additional information or action and that he assumed that his rights were being defended; and that Malek did not advise him of any defaults or notices until after the prove up. This affidavit also recited that Gerardo Malpede, his father-in-law (and a defendant against whom the decree ran), had been dead for more than ten years; that the plaintiff's original offer to do the job for $4,490 complete was rejected by the affiant who offered to supply the material; that the plaintiff then agreed to do the job for the difference between the materials and that figure; and that there never was any discussion of time and materials. It further recited that the affiant himself purchased all materials used on the job; that money ($1,149.95) was paid to the plaintiff in advance; that the plaintiff never gave affiant any invoices; that throughout the project there was only one man on the job, the plaintiff's brother-in-law, Tony; that on one occasion a second man, an apprentice, was there, and, on another occasion, three men were there to hang one door; that the plaintiff never removed any walls or did any siding work and did not even clean up after the job; that when the plaintiff no longer had anyone on the job the affiant refused to pay any more; that the materials furnished and the money paid more than compensated the plaintiff for the labor of installation; and that no money was due and owing to the plaintiff for work on the premises.

On February 17, 1972, another affidavit by Annette Ferri was filed. It corroborated her husband's affidavit and added that her husband also paid for all plumbing supplies and the plumber's labor costs.

On February 22, 1972, the plaintiffs filed a four page unsworn "answer" to the defendants' motion to vacate, attacking the defendants' affidavits on the grounds that they were irrelevant, untrue, contradictory, incompetent and conclusory.

On that same day, the court entered a final order vacating so much of the decree of January 13, 1972, as ordered relief against the deceased Gerardo Malpede, but denying the defendants' motion in all other respects. This appeal followed.

Section 50 (5) of the Civil Practice Act (Ill. Rev. Stat. 1963, ch. 110, par. 50 (5)), provides that a court may set aside a judgment on a motion made within thirty days "upon any ...


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