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Plowman v. Edgington

AUGUST 13, 1974.

LUELLA PLOWMAN, ADM'R OF THE ESTATE OF JOHN LEE PLOWMAN, DECEASED, PLAINTIFF-APPELLEE,

v.

JOHN W. EDGINGTON ET AL., D/B/A BILL'S TAVERN, ET AL., DEFENDANT-APPELLANTS.



APPEAL from the Circuit Court of Lawrence County; the Hon. RANDALL S. QUINDRY, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order entered by the circuit court of Lawrence County denying defendant's, Mildred Edgington's, verified written "motion" to vacate and set aside the default judgment entered against her and defendant's verified written "motion" for leave to appear and plead or answer to the complaint previously filed by the plaintiff, Luella Plowman, administrator of the estate of John Lee Plowman.

On October 28, 1971, plaintiff filed a complaint under the Dram Shop Act alleging that the defendant, defendant's husband (John W. Edgington), and other named parties were liable for the death of John Lee Plowman who allegedly died as a direct and proximate result of his consumption of alcoholic liquors at Bill's Tavern, which was allegedly owned and operated by the defendant, defendant's husband, and other named parties. On November 6, 1971, a summons was served on defendant's husband at Bill's Tavern and, at the same time, a separate summons for the defendant was left with defendant's husband. The officer who "served" said summonses did not mail a copy of the summons with postage fully paid to the place of defendant's abode. Defendant's husband died sometime thereafter.

On February 16, 1972, the trial court entered an order stating that:

"On motion of * * * attorneys for Plaintiff, summons in this suit, as it appears from the return of the Sheriff of Lawrence County, thereon, having been duly served upon the Defendants John W. Edgington and Mildred A. Edgington on November 6, 1971;

And said Defendants, John W. Edgington and Mildred A. Edgington, having failed to file an answer or otherwise make appearance herein, they are adjudged in default, and it is ordered that the complaint herein be taken as confessed against the said Defendants."

On July 25, 1972, plaintiff withdrew her demand for a jury trial as to the defendant and her husband. On the same date, July 25, 1972, the trial court "after hearing the evidence of damages" entered a "default judgment order" against the defendant and her husband and assessed damages of $180,000. On March 26, 1973, defendant's attorney filed a verified written "motion," apparently under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) asking "for leave to file a Motion to Vacant [sic] Default Judgment * * * entered against the Defendant on the 25th day of July, 1972, for reasons that the Defendant upon information believes she has a valid defense." On April 5, 1973, the trial court, on motion of the plaintiff, ordered that the "default judgment order" of $180,000 against the defendant and her husband be remitted to the sum of $20,000. On April 26, 1973, defendant filed a "Motion to Set Aside Judgment." Attached to said "motion" was an affidavit of the defendant stating in part:

"3. That John W. Edgington on November 7, 1971, engaged an attorney-at-law, licensed in the State of Illinois, and presented to him the summons and complaint in said cause.

4. That the attorney informed my late husband, John W. Edgington, that Plaintiff's case was without merit and for him to take no further action, that cause would never go to trial.

5. My late husband and I relied upon the advice of the attorney and believed it unnecessary to file an Answer to Plaintiff's Complaint.

6. That I did not receive any notice or have any knowledge of the existence of the default judgment rendered against me therein until on or about March 19, 1973 at which time my attorney, Samuel H. Taylor, informed me that on July 25, 1972, a $180,000.00 judgment, had been entered against me in this matter; judgment has now been remitted to $20,000.00.

7. That my said attorney further informed me that the Complaint herein charges that I caused or contributed to the death of one John Lee Plowman, but in truth and in fact, I did not cause or contribute to the death of said person and am in no way responsible therefor.

8. That immediately upon learning of the existence of said judgment, I instructed my attorney to take necessary steps to set aside and to obtain a trial of said cause upon its merits."

On May 23, 1973, the defendant filed an amended affidavit stating, in addition to points one, six, seven, and eight ...


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