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Patrick v. Burgess-norton Mfg. Co.

FEBRUARY 14, 1975.

OSCAR PATRICK, PLAINTIFF-APPELLANT,

v.

BURGESS-NORTON MANUFACTURING COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 25, 1975.

This is an appeal from a final order denying plaintiff's petition to set aside a judgment entered by the Circuit Court of Kane County. Plaintiff's counsel had failed to appear for trial because he was engaged in the trial of another cause in Cook County.

The lawsuit was filed in 1959. On March 15, 1963, it was dismissed for want of prosecution without notice to plaintiff. Plaintiff filed a new complaint within 1 year, and this complaint was dismissed. Plaintiff appealed, and on March 26, 1965, this court reversed and remanded with directions to reinstate the cause. The opinion of the court appears in abstract form in 56 Ill. App.2d 145. On July 29, 1965, the cause was reinstated in the circuit court. After completion of discovery, plaintiff appeared on December 26, 1972, and advised the court that he was ready for trial. The case was never pretried but was placed on the master trial calendar. On the 5th of February, 1973, there was a trial call, and an order was entered setting the case for trial on February 13, 1973, at 10 A.M. Plaintiff's case was Number 90 on a trial call of 91 cases. On February 9, plaintiff's counsel began trial of another matter in Chicago and remained on trial until February 17. On February 13 he was notified that this case was up for trial and the court would hold it for trial until 1:30 P.M. that day. At 1:25 P.M. plaintiff's attorney reached the trial judge and explained that he was the only attorney in the case and that he was engaged on trial. The trial judge insisted that the attorney either be there or engage someone else. At 1:30 P.M., the trial court proceeded to empanel a jury and to hear the matter ex parte. On a verdict for defendant, the judge entered judgment for defendant as of that afternoon.

On March 6, 1973, plaintiff's counsel prepared a verified petition to set aside the judgment. The petition set forth the above facts. A hearing was held on March 12, 1973, and the trial court denied the petition. This appeal is from that denial.

The sworn petition also recites the substance of a conversation had with defendant's attorney, Gates W. Clancy, prior to February 5, and an agreement in general not to seek an immediate trial date because of a problem of making service on a third-party defendant and Clancy's assertion of having approximately 13 other cases on the trial call ahead of the instant case. This conversation was not only never denied, but the defense attorney who appeared at the hearing stated that on February 1 or 2 Mr. Phillips "related to me that he had some kind of conversation with Mr. Clancy about continuing the trial." This attorney attended the trial call of February 5, and informed the court that Mr. Phillips would like the case continued. The court then set the trial for February 13. The defense attorney states that he called Mr. Phillip's office and left a message with a girl that the case was set for February 13. The verified petition denies any knowledge of this phone call and has also attached two letters about the case, one dated February 5 and one dated February 6 from the office of Gates W. Clancy in which there was no mention of the Feb. 13 trial date.

It was further shown that plaintiff had not previously requested any continuances or postponements of the trial.

Did plaintiff's attorney have grounds for a reasonable belief that trial was not imminent and that he could prepare for the Cook County trial which commenced on February 9, and was the fact that he was on trial in Cook County good grounds for continuance? Plaintiff's attorney did not attend the trial call.

• 1 It is apparent from the record that on the morning of the 5th, plaintiff's attorney knew that his case was Number 90 on a list of 91 cases and that defendant's attorney had about 13 cases on that trial call. In the usual course of events the case would not be reached. The record shows that on the 5th the assignment judge with no advance notice plucked the case from position 90 and set it down for February 13. A phone call was allegedly made and a message left that the case had been set for a day certain. This would not be the first time in Illinois where an attorney's secretary failed to communicate a message to her employer. (See Becker v. Pescaglia, 24 Ill. App.3d 410.) Plaintiff's attorney has stated on his oath that he did not receive any notice whatsoever until the morning of the 13th when he was engaged in trial. The defendant in the instant case presented no testimony and filed no counter-affidavits, and, accordingly, the statements of fact in the affidavit must be taken as true. Lane v. Bohlig, 349 Ill. App. 487.

Modern cases only require that a just result be achieved and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits. People ex rel. Reid v. Adkins, 48 Ill.2d 402, 406; Glenner v. Chicago Transit Authority, 9 Ill. App.3d 323, 326; Accurate Home Supply, Inc. v. Malpede, 12 Ill. App.3d 749, 753; Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill. App.2d 102, 108-9; Village of Mundelein v. Turk, 24 Ill. App.3d 223; Smith v. National Drag Racing Enterprises, Inc., 24 Ill. App.3d 91.

The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served. Trojan v. Marquette National Bank, 88 Ill. App.2d 428, 438; Knight v. Kenilworth Insurance Co., 2 Ill. App.3d 493.

• 2 Applying these principles to the facts of this case, we are of the opinion that allowing the plaintiff to have his day in court and to a trial on the merits of this case will not result in any prejudice to the defendant. It is the belief of this court that justice will be done by reversing the judgment of the trial court and remanding with instructions to set aside the judgment and allow the plaintiff to go to trial on the merits.

Reversed and remanded with ...


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