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Kollath v. Chicago Title And Trust Co.

SEPTEMBER 19, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.


Rehearing denied December 24, 1974.

Richard Kollath, the plaintiff in an action to foreclose a mechanic's lien for architectural services, appeals from a decree of the Circuit Court reinstating an order of October 4, 1971, which dismissed the cause for want of prosecution.

Kollath brought this action in November 1968, but in August 1969, it was dismissed for want of prosecution. An order vacating the dismissal was entered the following September and the cause was reinstated on the trial call.

The next time the case was called was on October 4, 1971. Kollath failed to appear and the case was again dismissed for want of prosecution. On November 3, 1971, exactly 30 days after the entry of the order of dismissal, Kollath's attorney, Spencer W. Schwartz, filed a notice of motion with the clerk of the court, which recited that on the following day he would move to vacate the dismissal and have the cause reset for trial. No written motion or petition was filed with the notice. A $10 filing fee was tendered with the notice, which certified on its face that a copy had been served on the defendants' counsel, Albert Arnstein, by a November 2 mailing addressed to 111 W. Washington St., Chicago.

On November 4, Schwartz appeared in court and made an oral motion for reinstatement; the court granted the motion and vacated the order of dismissal which had been entered 31 days previously.

In August 1972, Arnstein received notice that the plaintiff would move for a substitution of attorneys. The defendants entered a special appearance and petitioned the court to set aside the order of November 4, 1971, and to hold all proceedings incident to that order null and void. In support of the petition Arnstein filed an affidavit attesting that he had not received notice of the plaintiff's motion of November 4, 1971, nor of the order to reinstate which was entered on that date. He stated that he first learned of the order when he received notice of the motion to substitute attorneys. The new attorneys for the plaintiff filed an answer supported by the counter-affidavit of his former counsel which admitted that the notice purportedly served on the defendant's attorney had been incorrectly addressed. Arnstein's office was located at 77 W. Washington Street, not 111.

In December 1972 an order was entered denying the defendants' petition. However, on January 5, 1973, the court vacated its December order and also the order of November 4, 1971, finding the latter to be null and void. It was further decreed that the order of October 4, 1971, dismissing the cause for want of prosecution, should stand in full force and effect. It is from the order of January 5, 1973, that Kollath's appeal is taken.

Both parties agree that the sole issue for review is whether the court had jurisdiction to enter the order of November 4, 1971, reinstating the cause of action. This poses a question which, the parties tell us, has not been definitely decided in Illinois. Section 50(5) of the Civil Practice Act provides:

"(5) The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable." Ill. Rev. Stat. 1971, ch. 110, par. 50(5).

Kollath argues that since his notice was filed within 30 days, the court had jurisdiction to vacate its prior order of dismissal; that for jurisdictional purposes the November 3, 1971, notice that a motion was to be made the next day was the equivalent of a motion; that it is not essential that a motion filed within the 30-day limitation be heard within that period, and that the 30-day period of jurisdiction to entertain post-judgment motions exists whether opposing parties are notified or not. The defendants respond by attacking two premises in the progression of the plaintiff's logic. They contend that filing a notice of motion is not the equivalent of placing a motion before the court and should not be treated as such, that the failure to notify defense counsel regarding the proceeding on November 4, 1971, rendered that proceeding a nullity.

• 1 It is clear that if a motion is timely filed it need not be heard within the 30-day limitation period. Supreme Court Rule 184 (Ill. Rev. Stat. 1971, ch. 110A, par. 184) states:

"No provision in these rules or in the Civil Practice Act prescribing a period for filing a motion requires that the motion be heard within that period. Either party may call up the motion for disposition before or after the expiration of the filing period."

• 2, 3 Supreme Court Rule 184 only enters into effect if a motion is filed within the statutory time limit. Thus, Kollath's major hurdle has been to establish that the notice of motion filed with the clerk on the 30th day following the dismissal of his case was sufficiently equivalent to a motion to comply with the time limit set by section 50(5), so that the court ...

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