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Lectro-stik Co. v. Stepco Corp.

APRIL 24, 1974.

LECTRO-STIK COMPANY, PLAINTIFF-APPELLANT,

v.

STEPCO CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES P. HORAN, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 29, 1974.

An action was brought by plaintiff in the law division of the circuit court of Cook County. Following a change in the ad damnum limit of the law division, the case was transferred to the municipal department, of the circuit court. Upon a trial call in the municipal department, the defendant did not appear and an ex parte judgment was entered.

On November 16, 1971, a petition to vacate the judgment was filed by defendant and plaintiff filed a special appearance questioning the jurisdiction of the court to hear the petition. The court entered and continued the matter. On December 14, 1971, the court granted defendant's petition to vacate and set the matter for trial. The case came up for trial on January 24, 1972, and was dismissed for want of prosecution.

The principal issue presented for our review is whether the lower court had jurisdiction to vacate the judgment.

The facts that are pertinent to this appeal can be summarized as follows: Plaintiff filed a tort action in the law division of the circuit court of Cook County on August 26, 1966. Subsequently, defendant filed its appearance, jury demand, answer, counterclaim and amendment to answer, and plaintiff filed its answer to the counterclaim.

Due to a change in the limits of the ad damnum amount of the law division and the municipal department of the circuit court, the case was transferred to the municipal department on August 31, 1970, without notice to either party.

The matter came up on the trial call of the municipal department on July 1, 1971, and was continued to August 16, 1971. On August 16, 1971, the defendant not appearing, judgment for the amount prayed for in the complaint was entered by the court.

On November 16, 1971, this matter came before the court below on the verified petition of the defendant to vacate the ex parte judgment previously entered. Defendant's petition to vacate the judgment alleged, in pertinent part, that the instant matter was transferred from the law division to the municipal department without notice to the defendant or its counsel and that the defendant in fact had no notice of the transfer of the case, the new trial date, or the judgment until served with an execution. The petition further alleged a defense to the action and prayed that the matter be set for trial.

Plaintiff entered a special appearance on November 16, 1971, contesting the jurisdiction of the court to vacate the judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, § 72). Plaintiff alleged that notice was not properly served upon it in accordance with the rules of the Illinois Supreme Court. Ill. Rev. Stat. 1971, ch. 110A, §§ 105, 106.

On November 16, 1971, the court continued until December 14, 1971, defendant's petition to vacate as well as the hearing on plaintiff's special appearance. Defendant sent a notice of motion together with its petition to vacate to Bernard Borisof, president and registered agent of the plaintiff, informing him of the December 14, 1971, hearing on the petition to vacate. The petition contained a proof of service by the attorney reciting service by registered mail upon the person to whom it was directed.

On December 14, 1971, the defendant again presented its petition to vacate together with its notice to the agent of plaintiff. Neither the plaintiff nor its attorney appeared at this hearing. The court, after hearing the nature of the notice and the method of service upon plaintiff, granted defendant's petition, vacated the judgment previously entered, and set the matter for trial.

On January 12, 1972, plaintiff filed a notice of appeal from the order of December 14, 1971, vacating the judgment previously entered. On January 24, 1972, the case came up for trial. Plaintiff did not appear, and its complaint was dismissed for want of prosecution.

On appeal, plaintiff contends that the trial court lacked jurisdiction to vacate the judgment previously entered because the defendant failed to comply with the notice requirements of section 72 and the related Illinois Supreme Court Rules. Plaintiff also ...


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