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Rickard v. Pozdal

AUGUST 25, 1975.

CHARLES RICKARD, PLAINTIFF-APPELLANT,

v.

HELEN POZDAL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. ERNEST W. AKEMANN, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 11, 1975.

The plaintiff filed his complaint in the small claim branch of the circuit court for the refund of some $875 earnest money paid on the proposed purchase of a beauty parlor, which deal failed to materialize. The defendant appeared and moved to transfer to a proper venue, which motion was denied and the case set for trial on May 24, 1972. On that date, the defendant did not appear and a judgment for the plaintiff was entered. On May 26, 1972, the defendant filed a notice of appeal to the appellate court from the orders of April 28, 1972, and May 24, 1972.

On June 7, 1972, the trial court entered an order reconsidering and allowing the motion to transfer the case to the Municipal Court of Cook County and ordered the defendant, within term time to move to vacate the judgment of May 26, 1972, the transfer to be delayed until then. On June 9, 1972, the defendant moved to dismiss her appeal, to vacate the judgment of May 24, 1972, and to order the clerk of the court to transfer all proceedings to the Municipal Court of Cook County, pursuant to the order of June 7, 1972. On June 16, 1972, the plaintiff, not being present, the pending appeal was dismissed, the judgment entered on May 24, 1972, was vacated and the clerk was directed to certify all proceedings and transfer the proceedings to the Municipal Court of Chicago.

On May 14, 1973, almost 1 year later, the plaintiff moved to vacate the order of June 15, 1972, on the ground that the court then had no jurisdiction because an appeal by the defendant from the judgment of May 24, 1972, was still pending. The defendant moved to strike said motion on various grounds and, on June 15, 1973, the plaintiff filed another motion as follows:

"MOTION TO VACATE FOR WANT OF PROSECUTION

Comes now the Plaintiff, pursuant to Section 72 of the Civil Practice Act, and herewith moves to vacate those certain orders of June 7 and June 15, 1972, respectively, which purport to transfer venue and to vacate a judgment in favor of Plaintiff, previously entered on May 24, 1972, and as grounds therefor says:

1. This motion is made within two years of the said order of June 15, 1972.

2. Judgment was duly entered herein in favor of Plaintiff and against Defendant on May 24, 1972.

3. Thereafter, Defendant perfected an appeal of such judgment order to the Illinois Appellate Court Second District, the affect of which was to deprive this court of jurisdiction for any substantial action on the case.

4. Thereafter, and while said appeal was still pending, Defendant on the 3rd day of June, 1972, attempted to give and serve upon Plaintiff notice concerning venue, being a motion to transfer venue of said case to another Court, and on the 7th day of June secured an order transferring venue to another court; and, further, on the 9th day of June, gave a purported notice of transfer of venue, vacation of judgment and dismissal of appeal for June 15, 1972, and on that date secured an order again transferring venue, vacating judgment and dismissing the appeal.

5. At the time of the service of such notice, and at the time of the presentment of such motions to the Court on June 7 and June 15, 1972, this Court had no jurisdiction whatever to recognize said notices or to entertain such motions, and in so doing was acting completely without jurisdiction.

6. By reason of the aforesaid, said order of June 7, 1972, which purported to transfer venue and that portion of the order of June 15, 1972, which purported to vacate the judgment of May 24, 1972, and to transfer the cause to the municipal court of Cook County, Illinois, ...


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