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Friedman v. Jackson Park Drug Co.

MAY 8, 1974.

LAWRENCE FRIEDMAN, D/B/A CORNELL STEEL CITY DISTRIBUTING COMPANY, PLAINTIFF-APPELLEE,

v.

JACKSON PARK DRUG CO. ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon JOSEPH B. HERMES, Judge, presiding.

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

On December 16, 1969, plaintiff-appellee filed a two-count complaint against defendants. The first count against defendant, Jackson Park Drug Co., is not involved in this appeal. The second count named the defendant-appellant, James E. Hurt. It charged Hurt with liability as a guarantor of the obligation incurred by the co-defendant, Jackson Park Drug Co. On January 27, 1970, defendant Hurt filed a motion supported by affidavit to strike Count II, on the ground that the written guaranty sued on and attached to the complaint was not executed, signed or subscribed by defendant Hurt and does not bear his name.

By agreement of the parties the hearing of the complaint was continued to October 27, 1970, at which time neither defendant nor their counsel appeared. Plaintiff in his brief alleged that his attorney made an oral motion to strike defendant Hurt's motion to strike Count II, but it does not appear in the record. The trial court entered an ex parte judgment against both defendants. An execution was personally served upon Hurt on January 12, 1971. On June 8, 1971, Hurt petitioned the trial court to vacate the judgment of October 27, 1970. In said petition Hurt raised the same defense made in his previous motion of January 27, 1970, to strike Count II of the plaintiffs complaint, claiming that the signature on the guaranty was not his signature, supported by his affidavit.

On August 16, 1971, a hearing was held and the trial court denied Hurt's petition to vacate the judgment of October 27, 1970, against Hurt. There is nothing in the record to show a ruling as to the signature of defendant on the guaranty. Hurt did not seek an appeal from the trial court's ruling.

One year later, on September 8, 1972, defendant Hurt filed a second petition to vacate the judgment which was exactly the same as the petition which had been denied by the trial court. The second petition also supported by affidavit, was denied on the day it was filed upon the basis that the court had already ruled upon the contents of the petition. This appeal followed.

Defendant-appellant Hurt claims that the trial court erred in denying his motion to vacate the judgment against him for the reason that said judgment was void and may be vacated at any time.

The plaintiff-appellee, on the other hand, argues that although section 72(6) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, sec. 72(6)) provides that "any order entered denying or granting any of the relief prayed in the petition is appealable," we must also consider Supreme Court Rule 303. Said Rule 303(a) provides that a notice of appeal must be filed within 30 days after the entry of the judgment appealed from. Supreme Court Rule 303(e) provides: "On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal, filed in the reviewing court within 30 days of the expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal * * *."

Although plaintiff in his brief alleges that on October 27, 1970, he made an oral motion to strike defendant Hurt's motion to strike Count II, the record does not support plaintiff's allegation. Had the trial court made such a ruling, it would have been incumbent upon the trial court to grant defendant Hurt time to answer or otherwise plead before entering the judgment. In our judgment the order of the trial court was void, which is subject to be attacked at any time.

In Oak Park National Bank v. Peoples Gas Light & Coke Co., 46 Ill. App.2d 385, 394, 197 N.E.2d 73, we find this language:

"If the initial judgment was one which the trial court had no power to enter, that judgment is void and may be attacked at any time in the same or any other court, by the parties or by any other person who is affected thereby."

In the same opinion, at page 396, the court said:

"As we have stated, in our opinion, the judgment originally entered was void, and hence, even though the petition was designated as having been brought under section 72, it is neither necessary nor appropriate to consider the negligence or lack of negligence of the plaintiff as a determinative factor in whether or not the judgment should be vacated."

Similar decisions have been expressed in Fennema v. Vander Aa, 93 Ill. App.2d 162, 236 N.E.2d 409; and Lake Shore Savings & Loan Association v. American National Bank & ...


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