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Campbell v. Kaczmarek

OPINION FILED JUNE 11, 1976.

ARTHUR F. CAMPBELL ET AL., PLAINTIFFS-APPELLANTS,

v.

ELEANOR KACZMAREK ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order granting the section 72 petition of defendant Eleanor Kaczmarek (hereafter Kaczmarek) to vacate a default judgment entered some nine months prior thereto. On appeal, plaintiffs contend the petition should have been denied because of Kaczmarek's lack of diligence in presenting it.

Plaintiffs filed a three-count complaint against Kaczmarek and "John Doe." Count I alleged that Campbell was an officer of Thortronics and that while he was on corporate business on premises leased to Thortronics by Kaczmarek, she and her agent, known only as "John Doe," refused to allow Campbell to leave the premises until he gave her a check for rent owed by the corporation. The complaint alleged further that Campbell informed defendants that he was merely the agent for the corporation and was not personally liable for its rent and that, notwithstanding those facts, defendants held him against his will. Judgment in the amount of $500,000 was asked against both defendants by reason of the alleged false imprisonment.

Count II realleged that Campbell was an officer of Thortronics and was lawfully on the premises rented by it, and further asserted that "John Doe" made threatening gestures toward him so as to put him in fear for his safety. Campbell alleged further that said threats and gestures were without any reason for provocation and did, in fact, put him in fear for his safety. Judgment for $500,000 was asked in this count against "John Doe" only.

Count III involved a complaint by Thortronics for conversion of its property. It alleged an oral lease of certain premises from Kaczmarek, running from month-to-month, and that the rental had commenced in January, 1973, at a rate of $115 per month. It was further alleged that on January 1, 1974, without any notice to it, Kaczmarek had barred the door to said premises, preventing its agent or employee from entering, and that she has refused and still refuses to allow access. This count then asserts that she wilfully converted certain of its goods, wares and merchandise, and that she has moved and misplaced electronic equipment of a high value. It is then alleged that she refused to return the goods, wares and merchandise having a value of $250,000 and additional individual electronic components worth $25,000. Judgment in the sum of $275,000 was requested only against Kaczmarek.

Summons was personally served upon Kaczmarek and, when she failed to appear or answer, an order of default was signed. Subsequently, on May 20, 1974, an order was entered which, after reciting that sworn testimony was heard and that the court was fully advised in the premises, gave separate judgments against Kaczmarek as follows: (1) $1,250 to Campbell "for the false imprisonment, as alleged in Count 1"; (2) $1,250 to Campbell "for the assault, as alleged in Count 2"; and (3) $75,000 to Thortronics "for the conversion, as set forth in Count 3." The judgment order further provided that the sheriff turn over to Thortronics possession of all merchandise belonging to it located on the subject premises. On June 13, 1974, the trial court entered an order directing the sheriff to enter the subject premises and obtain possession of all merchandise belonging to Thortronics, and on July 19, 1974, the sheriff presented Kaczmarek with this order and removed a number of items of personal property, which were turned over to Thortronics.

In January of 1975, Campbell filed garnishment proceedings against defendant's bank account and, thereafter, on March 4, 1975, Kaczmarek filed the instant section 72 petition to vacate the judgment order of May 20, 1974. In this petition, she stated that: upon being served with process, she turned over all of the papers she had received to an attorney, Donald Ross, who advised her "that he would check the matter and take care of it for her"; on June 19, 1974, the sheriff appeared at her premises with a court order, which was her first knowledge that any official action had been taken; it was her impression at the time that her attorney had agreed to the return of certain equipment on her property belonging to Thortronics; the only knowledge she had of a judgment entered against her "is when she became aware of a garnishment summons on her bank"; she had a good and meritorious defense in that Thortronics had entered into a month-to-month tenancy but had paid rent only for the months of June and July, 1973, and then had abandoned the premises until February 14, 1974, when "he" *fn1 returned and wanted to re-enter the property; in the meantime, Thortronics had paid no rent and, being unaware of "his" whereabouts, she placed the equipment located on the property in boxes; and Campbell gave her two checks for $100, "which he instructed her not to cash because he had no money."

In their answer, plaintiffs stated that the petition showed on its face a lack of diligence and that consultation with an attorney was no defense thereto. On the question of diligence, they answered also that although Kaczmarek was served with summons on March 28, 1974, and had been served with a court order on June 19, 1974 (when the sheriff removed plaintiff's property), she took no action until the instant section 72 petition was filed on March 4, 1975.

The petition was denied on April 16, 1975, following which a motion to reconsider was filed. At the hearing on that motion, Kaczmarek admitted receiving a copy of the complaint and being served with summons. She told of the delivery of the papers to her attorney, who said he would take care of the matter. She also testified that in June of 1974, when the sheriff removed the equipment, she again delivered the sheriff's papers to the attorney but that when she was served with the garnishment papers she was unable to contact that attorney and, instead, went to another lawyer. She had never signed any agreement with the first attorney nor did she pay him anything. She further testified that Thortronics had leased the premises for about a year before her husband's death and then moved out. They returned in May, 1973, on a month-to-month oral lease, paid rent through July, and then disappeared until February of 1974 when Campbell returned and said that he wanted to enter the premises — which had been locked by her. She asked him for some rent before she would allow entry. Campbell made a motion to leave, but her uncle who was there at the time stood in the doorway and demanded payment, telling Campbell he could not leave until he gave something. She testified that Campbell was kept there for an hour or an hour and a half, and he then gave two checks which he told her not to cash "because he had no money."

The court granted her section 72 petition and vacated its judgment order of May 20, 1974. This appeal is brought from that vacatur order.

OPINION

A petition to vacate a judgment under section 72 is addressed to the equitable powers of the court. (Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348; George F. Mueller & Sons, Inc. v. Ostrowski, 19 Ill. App.3d 973, 313 N.E.2d 684.) Upon review, this court is justified in disturbing the trial court's judgment only when its equitable discretion has been abused. George F. Mueller & Sons, Inc.; City of Des Plaines v. Scientific Machinery Movers, Inc., 9 Ill. App.3d 438, 292 N.E.2d 154.

• 1 A section 72 petition, although filed in the original proceeding, is not a continuation thereof, but is the commencement of a new cause of action. (Mutual National Bank v. Kedzierski, 92 Ill. App.2d 456, 236 N.E.2d 336.) As in any civil case, the petition must allege facts stating adequate grounds for relief. (Smith v. Pappas, 112 Ill. App.2d 129, 251 N.E.2d 390.) Likewise, the failure of an opposing party to answer any allegations constitutes an admission of those facts well pleaded. Windmon v. Banks, 31 Ill. App.3d 870, 335 N.E.2d 116; Libert v. Turzynski, 129 Ill. App.2d 146, 262 N.E.2d 741.

• 2 It is also well settled that a petitioner under section 72 must establish not only a meritorious defense to the cause alleged in the original action, but also that he exercise due diligence in presenting such defense. (Esczuk v. Chicago Transit Authority, 39 Ill.2d 464, 236 N.E.2d 719; Sora Loan Corp. v. Shlifka, 2 Ill. App.3d 137, 276 N.E.2d 85.) Since separate judgments were entered by the trial court here, we find ...


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