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Hoopingarner v. Peric

APRIL 17, 1975.

LOUIS HOOPINGARNER, PLAINTIFF-APPELLEE,

v.

JORDAN PERIC ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

This is an appeal from the denial of a section 72 petition to vacate a default judgment entered against the defendants, Jordan and Ceda Peric. (Ill. Rev. Stat. 1969, ch. 110, par. 72.) The defendants assert that the judgment against Ceda Peric is void and that the judgment and the verdict for damages should be vacated based on the meritorious defenses alleged in their petition.

Ceda and Jordan Peric are father and son. They were born in Yugoslavia and came to the United States in 1952 and 1957, respectively. Ceda is over 80 years of age and Jordan is in his middle thirties. The plaintiff, Louis Hoopingarner, who is about 36 years old, was a tenant in a building owned by Ceda. Jordan Peric lived next door.

In July 1970 there was an altercation between the landlord and the tenant. Hoopingarner, an unemployed father of four children, was behind in his rent. He claimed that he caught Ceda altering the lock on his apartment door and that they exchanged blows. He went to call the police and when he returned, Ceda, Jordan and four unknown men assaulted him.

In April 1971 Hoopingarner filed a complaint against the two Perics and four "John Does." He alleged that while the four unknown men held him on the ground, Jordan Peric intentionally stomped on his elbow, breaking his arm and causing permanent and severe injuries.

The defendants did not answer and a default judgment was entered against them on June 9, 1971. According to the sheriff's return, they had been served with the summons and complaint on April 16, 1971. An ex parte prove-up for damages was held on September 15, 1971. Hoopingarner testified at the trial and the jury awarded him $60,000.

In November 1972 the defendants were served with a citation to discover assets. It was their first notification of the default judgment. They responded to the citation and filed a petition under section 72 to vacate the judgment. Their petition was denied but they were granted leave to file an amended petition.

Their amended petition stated that the complaint did not state a cause of action against Ceda Peric because it did not allege any act by him that proximately caused the plaintiff's injury; that the trial court could not enter a judgment for damages with malice as the gist of the action because the complaint did not expressly request that form of relief; that copies of the summons and the complaint were not served on Jordan; that Ceda did not comprehend the significance of the summons and complaint because of his poor understanding of the English language; that Ceda brought these documents (which were actually addressed to Jordan) to his attorney, Donald Barliant, but that Barliant refused to represent him. Their petition also asserted that they did not injure Hoopingarner and that a comparison of his complaint with his testimony at an earlier criminal hearing would show that the complaint alleged a different account of his injuries.

Hoopingarner's response contended that the defendants failed to exercise diligence in presenting their defense and that their petition did not comply with either the procedural or substantive requirements of section 72; it also refuted the assertions in the petition that Ceda did not understand the importance of the papers served on him and that Jordan was not served. Attached to the response was a copy of a letter written by Barliant to the Chicago Bar Association. The letter protested the Legal Aid Bureau, a charitable organization supported by the Bar Association, representing a citizen in a personal injury case — one that a private attorney would handle on a contingent fee basis. It was contended that the letter showed that Jordan Peric knew that Hoopingarner's case was pending against him and that Barliant was Jordan's lawyer. The relevant portion of the letter stated:

"Either the Legal Aid Bureau should assume the defense of Jordan Peric or they should withdraw from proceeding with this matter. My client is prepared, with my aid, to formally complain of the conduct of the plaintiff's attorney and his office in this matter."

Hearings were held on the amended petition and answer in March and April 1973. The request to vacate the default judgment was denied, but the portion of the judgment that stated that malice was the gist of the action was deleted.

The Perics' first contention is that the court lacked jurisdiction to enter a default judgment against Ceda because the complaint did not state a cause of action against him. Ceda's name appeared at the beginning of the complaint where it stated that the plaintiff complained of Ceda, Jordan and the other defendants, but there was no further reference to him. His co-defendants were accused of doing particular acts, but he was not, and he was not charged with aiding or abetting them. The verdict did not cure the omission because the complaint wholly failed to allege facts that were essential to a right of action, or facts from which inferences could be drawn that might sustain a right of action. Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162.

• 1, 2 A motion under section 72 is proper for the correction of errors of law apparent on the face of the record. (Collins v. Collins (1958), 14 Ill.2d 178, 151 N.E.2d 813.) Since the complaint did not state a cause of action as to Ceda Peric, the judgment entered against him was void and was subject to collateral attack in a section 72 petition. (Auto Exchange, Inc. v. Litberg (1962), 34 Ill. App.2d 329, 181 N.E.2d 359.) Under this circumstance, a section 72 petition is not subject to an objection that the movant did not show due diligence. (Lake Shore Savings & Loan Association v. American National Bank & Trust Co. (1968), 91 Ill. App.2d 143, 234 N.E.2d 418.) The judgment against Ceda Peric is vacated, and the order denying him relief is reversed.

• 3 Jordan Peric argues that if the judgment against his father is vacated, the judgment against him must also be. However, he has not demonstrated the interdependence of rights, inequity or prejudice required among joint tortfeasors which justifies vacating the judgment against all when the judgment is ...


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