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Berkson v. Quality Beauty Supply Co.

OPINION FILED MARCH 9, 1976.

INEZ BERKSON, PLAINTIFF-APPELLEE,

v.

QUALITY BEAUTY SUPPLY CO., INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK GLOWACKI, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant appeals the denial of a section 72 (Ill. Rev. Stat. 1973, ch. 110, par. 72) petition to vacate a default judgment in the amount of $14,500.

Inez Berkson (hereinafter plaintiff) suffered a personal injury to her nose, on May 17, 1972, while using a hair dryer which she purchased from Quality Beauty Supply Co. Inc. (hereinafter defendant). On May 30, 1972 plaintiff served an attorney's lien upon defendant and De Graff Products, Inc. (hereinafter De Graff), the manufacturer of the hair dryer.

De Graff's insurer, Insurance Company of North America, thereafter undertook an investigation of the claim and on or about February 17, 1973, entered into a settlement with plaintiff for $1,100. Plaintiff and her husband executed and delivered to the insurer a general release for her claim. The release stated plaintiff and her husband "* * * do severally and jointly * * * remise, release, and forever discharge De Graff Co. & De Graff Products et al its successors and assigns * * * from any and every claim, demand, right, or cause of action, of whatsoever kind or nature, either in law or in equity, arising from or by reason of any bodily and/or personal injuries known or unknown sustained by us * * * as the result of a certain accident which happened on or about the 17th day of May 1972, for which we have claimed the said De Graff Co. & De Graff Products et al to be legally liable, which liability is expressly denied."

Nothing further transpired between plaintiff and defendant until May 16, 1974, when plaintiff filed in the circuit court of Cook County a complaint against defendant praying for damages in the amount of $14,500 for personal injuries suffered to her nose when a hair dryer which she purchased from defendant on June 2, 1973, *fn1 malfunctioned. Defendant was personally served with a summons stating if defendant did not appear on June 18, 1974, a default might be taken against defendant for the relief asked in the complaint.

Upon defendant's failure to appear, a default judgment in the amount of $14,500 was entered against it on July 25, 1974. The order granting the default judgment also allowed plaintiff to amend her complaint changing the date of the occurrence from June 2, 1973, to May 17, 1972. Defendant was given no notice of this amendment or of the fact that a hearing would be held on July 25, 1974.

On January 30, 1975 defendant filed a petition to vacate the default judgment pursuant to section 72 of the Civil Practice Act. Defendant alleged the defense of release, admitting being served with summons May 16, 1974, but alleged the summons was forwarded to De Graff's insurer who informed defendant of the settlement of February 1973, and advised defendant it would undertake the defense and plead the release of February 1973. The petition further alleged that on August 1, 1974, plaintiff's counsel advised defendant of the July 1974 default judgment, and defendant immediately contacted De Graff and De Graff's insurer who advised defendant the default would be vacated forthwith. Defendant alleged it was not until January 6, 1975, that De Graff's insurer advised it to obtain its own counsel to vacate the default judgment. On the basis of the verified petition and the attached documents regarding the release, defendant asked the court to vacate the default judgment.

Plaintiff answered defendant's section 72 petition alleging that the release of February 1973 was not binding and defendant was not diligent in presenting this defense to the court. Plaintiff denies defendant gave De Graff's insurance company timely notice of the suit filed May 16, 1974, or of the default judgment entered July 25, 1974. Plaintiff attached a letter dated December 31, 1974, from De Graff's insurer to defendant informing defendant that it should secure its own counsel to vacate the default judgment. The letter explained De Graff could not be responsible for defending the suit because "* * * our first notice of same (suit and or judgment) was December 30, 1974 and this notification was after the default had been secured." Plaintiff also attached a copy of a certified letter and the return receipt which notified defendant of the July 25, 1974, default judgment and amendment to plaintiff's complaint. The receipt was dated August 2, 1974.

The trial court denied the section 72 petition but stayed the execution of the judgment until the termination of any appeal.

The issues raised by the defendant on this appeal are: (1) did the trial court abuse its discretion in denying defendant's petition to vacate; and (2) was the default judgment void for failure to give defendant notice of the amendment which changed the date of the occurrence giving rise to the cause of action.

I.

• 1-3 A petition to vacate a default judgment pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72), should contain allegations of fact which show a meritorious defense and due diligence in attempting to present that defense to the trial court. (Aetna Casualty & Surety Co. v. Sanders (1st Dist. 1973), 15 Ill. App.3d 573, 576, 305 N.E.2d 25.) A section 72 petition is addressed to the equitable powers of the court and invokes those powers as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances. (Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 613, 190 N.E.2d 348.) The trial court exercises a great deal of discretion in deciding section 72 petitions and will not be reversed absent a showing of an abuse of discretion. George F. Mueller & Sons, Inc. v. Ostrowski (1st Dist. 1974), 19 Ill. App.3d 973, 977, 313 N.E.2d 684.

A.

In the case at bar defendant presented evidence in its verified petition alleging the release of February 17, 1973, as a meritorious defense to the complaint filed May 16, 1974. The release arose from the same set of ...


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