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Kukuk v. Checker Taxi Co.

JUNE 15, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding.


Rehearing denied July 25, 1973.

Defendants appeal from an order entered on February 7, 1972, allowing plaintiffs' amended petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) to vacate an order of October 13, 1971, striking plaintiff's complaint and dismissing the personal injury action against the defendants. The sole issue raised on appeal is whether the court erred in granting the petition to vacate.

On January 14, 1971, plaintiffs, through their attorneys, Irwin M. Berkley and Maxwell Leib, filed a complaint asking for damages arising out of an automobile collision between a taxicab owned by defendant, Checker Taxi Company, and driven by defendant, Hawthorne Simpson, and an automobile occupied by the plaintiffs. The defendants filed an answer and on February 26, 1971, served interrogatories to be answered by plaintiffs within 28 days. (See Ill. Rev. Stat. 1971, ch. 110A, par. 213.) Plaintiffs failed to answer the interrogatories and on April 16, 1971, the court entered an order requiring plaintiffs to answer them within 28 days. Plaintiffs again failed to answer the interrogatories and on September 10, 1971, the court entered an order again granting them 28 days within which to answer. On October 13 the plaintiffs having still failed to answer the interrogatories, an order was entered striking the complaint and dismissing the suit.

On November 22, 1971, the present counsel for plaintiffs filed a petition under section 72 requesting the vacatur of the October 13th order dismissing the suit. In relevant part the petition stated:

"3. That [this action] was originally referred by Irwin M. Berkley to Maxwell Leib and a disagreement has arisen between said attorneys; that said plaintiffs' failure to respond to letters written to them by Attorney Leib resulted in said dismissal.

4. That said Interrogatories are prepared and are ready to be filed; that said plaintiffs have a good and meritorious [sic] cause of action and would be irreparably harmed if said case were not reinstated."

An amended petition was filed on December 13, 1971, which stated:

"3. That in January, 1971, when * * * [this action] was originally filed, Maxwell Leib was an associate of Irwin Berkley, to whom the said Berkley referred various matters. This cause was originally filed by the said Maxwell Leib, who retained possession and control of said file in this matter. During April of 1971, a disagreement arose between * * * Berkley and Maxwell Leib as a result of which numerous of Berkley's files were delivered to the authorities of the Federal Government.

Although Berkley has made due and diligent efforts to reconstruct said files and to obtain the return thereof from the Federal government, he was unable to do so until subsequent to October 13, 1971.

4. That on October 21, 1971 * * * Berkley referred this matter to [present counsel] * * * for Petitioner herein.

5. That on November 10, 1971 [present counsel] Petitioner was able to obtain the file from Leib.

8. Plaintiffs did not answer interrogatories because, due to the conflict between Berkley and Leib, the plaintiffs did not respond to Leib's letters and were not fully aware of the jeopardy which they faced."

Plaintiffs filed a memorandum in support of the amended petition which stated that during April 1971 Leib came under investigation of the United States postal authorities; that Leib referred the authorities to Berkley; that in April 1971 the investigators seized numerous files of Berkley's clients; that Berkley took immediate action to have said files returned and was eventually able to secure some portions of the files involved; that on October 21, 1971, Berkley referred the matter to the present counsel for petitioners; that when said counsel learned of the dismissal they immediately, on November 11, 1971, sent notice of a motion set for November 12, 1971, to the attorneys for the defendants seeking the vacatur of the dismissal; and that on November 12 counsel for petitioner was on trial in federal court and ...

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