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Wagstad Goff Const. Co. v. Kalman

OCTOBER 22, 1973.

WAGSTAD GOFF CONSTRUCTION COMPANY, PLAINTIFF-APPELLEE,

v.

WILLIAM KALMAN ET AL., DEFENDANTS-APPELLANTS — (OLSON WALL AND CEILING CONTRACTORS, INC., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. HAROLD A. SIEGAN, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

This appeal arises from a complaint to foreclose a mechanic's lien. The defendants filed appearances and answers and asserted counterclaims. When the case came to trial, neither the Kalman defendants nor their attorney appeared in court. The court then heard evidence without a jury and entered judgment in favor of the plaintiff on its claim and dismissed the Kalman defendants' counterclaim. A portion of the judgment against the Kalmans was decreed to be a lien in favor of defendant Olson, a party not involved in this appeal.

Within 30 days of the order, the Kalman defendants filed a motion to vacate the judgment and order of dismissal, which motion was denied. A judgment of foreclosure and sale was entered. The Kalman defendants appeal from the judgment orders and the denial of the motion to vacate.

On June 23, 1971, the plaintiff filed a complaint to foreclose a lien, naming as defendants William and Joyce Kalman and Olson Wall and Ceiling Contractors, Inc. The complaint alleges that William and Joyce Kalman were owners of real estate at 3845 North Harlem Avenue, Chicago, Illinois; that on or about March 3, 1970, they entered into a written contract with the plaintiff to construct an office and warehouse building on that property for the sum of $68,818; that plaintiff performed its obligation under the contract, including extra work which raised the amount due to $75,251.48; that the Kalmans paid $72,054.68, leaving a balance due the plaintiff of $3196.80; that the plaintiff filed a claim for lien on May 21, 1971, and prayed the court to impress a lien on the real estate in favor of the plaintiff, to appoint a receiver for the property and to enter judgment in the plaintiff's favor in the amount of $3196.80 plus interest. Olson Wall and Ceiling Contractors, Inc., was alleged to have a lien or other interest in the property, subordinate to that of the plaintiff.

The Kalman defendants filed an appearance, an answer and a counterclaim on July 23, 1971. They denied that the plaintiff had complied with the contract terms, claimed they had overpaid the plaintiff and that the plaintiff had abandoned work on the contract, requiring the defendants to procure the services and materials of others in order to complete the building. They prayed damages in the amount of $5000, and, under Count II of their counterclaim, alleged loss of rentals in the amount of $5000, for which amount plus costs and attorney's fees they prayed judgment in their favor. The plaintiff filed an answer to the counterclaim, denying the Kalmans' allegations and requesting dismissal of the counterclaim.

Olson Wall and Ceiling Contractors, Inc., filed an appearance on July 2, 1971, and an answer and counterclaim on August 20, 1971, the latter in the amount of $1576 plus interest, based on its own recorded mechanic's lien. Olson denied that the plaintiff's lien was superior to its lien. The plaintiff filed its answer to Olson's counterclaim on August 31, 1971. On September 13, 1971, Olson filed its reply to the plaintiff's answer.

The case was assigned to Judge Siegan and set for pretrial conference. After a number of continuances of the pretrial conference, it appeared to the court that the parties could not settle their differences, and trial was set for March 7, 1972. On that date the court entered an order setting trial for April 24, 1972. On that date, it appeared to the judge that a settlement was possible and trial was reset for June 22, 1972. On June 30, 1972, trial was reset for September 8, 1972. On September 8, 1972, the Kalmans and their attorney failed to answer the trial call, whereupon the following order was entered:

"This matter coming on to be heard for trial pursuant to the prior Order of Court, plaintiff and its counsel and witnesses and counsel for Olson Wall and Ceiling Contractors, Inc., being present in Court and ready for trial, and defendants Wm. Kalman and Joyce Kalman, having failed to answer the trial call, and the Court having heard testimony of witnesses and received evidence and being fully advised in this matter, after telephoning counsel for Kalmans at 9:55 A.M., waiting until 10:15 A.M. for proveup and entry of order at 10:40 A.M.

It is Hereby Ordered, that plaintiff have and recover a mechanic's lien in the amount of $3,196.80 plus 6% interest from Sept. 24, 1970 plus costs and a decree impressing said lien to be presented within 28 days hereof.

Further, the Court finds the issues in favor of said plaintiff and against said defendants and enters judgment herein in favor of Wagstad-Goff Construction Co., Inc. and against Wm. Kalman and Joyce Kalman and each of them in the amount of $3,196.80 plus 6% interest from Sept. 24, 1970 and costs; counterclaim of defendants Wm. and Joyce Kalman is dismissed for want of prosecution;

Further, that $1576.00 of the aforesaid lien of $3196.80 shall be decreed as a lien in favor of Olson Wall and Ceiling Contractors, Inc."

On September 21, 1972, counsel for the Kalmans filed a motion to vacate the September 8th order. The motion alleged that the Kalman defendants were engaged in attending to other urgent business matters which abruptly arose without notice to them on September 8, 1972; that because of their attendance to another business matter, they were unable to appear in court at 9:30 A.M. on September 8, 1972 through no fault of their own; that their attorney was engaged in another matter and inadvertently was unable to appear in court at 9:30 A.M. on September 8, 1972; that the Kalmans have a meritorious defense to the complaint and a meritorious counterclaim. The motion prayed for an order vacating: (1) the order of September 8, 1972, granting judgment against the Kalmans; (2) the dismissal of the counterclaim; and (3) the order granting a lien in favor of Olson on the judgment. The motion also contained a prayer that the cause be set for trial.

The plaintiff filed a petition to dismiss the Kalman motion. The plaintiff argued that the Kalmans' motion failed to allege facts which would establish a reasonable excuse for failure to appear for trial. The court set September 29, 1972, for a hearing. On the Kalman defendant's motion, the date was extended to October 2, 1972. On that date the court entered the following order:

"This matter coming on to be heard before Judge Siegan on the motion of defendants continued from Sept. 28, 1972, to vacate the judgment entered against the defendants, Kalmans; the court having been advised and the records reflect that defendants' atty Frederick A. Bragiel being present in court on Oct. 2, 1972 and Sept. 28, 1972 and several times prior to these court dates; that the defendants, Kalmans, having been notified to appear in court by Judge Siegan in a letter dated Sept. 28, 1972 and because of their failure to appear and continued ...


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