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Diacou v. Palos State Bank

OPINION FILED NOVEMBER 24, 1976.

HARRY J. DIACOU ET AL., APPELLANTS,

v.

PALOS STATE BANK ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Joseph J. Butler, Judge, presiding.

MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:

On September 29, 1966, the plaintiffs, Mr. and Mrs. Harry J. Diacou, filed a two-count complaint in the chancery division of the circuit court of Cook County. Each count alleged identical wrongful conduct on the part of the defendants. It was alleged that the defendant bank was given securities and real property to hold as collateral to secure a loan made to the plaintiffs. It was further alleged that all of the defendants made representations to the plaintiffs upon which the plaintiffs detrimentally relied and that the bank wrongfully sold some of the collateral. Count I of the complaint sought certain equitable relief, including a temporary injunction restraining the bank from selling any of the remaining collateral. Count II of the complaint sought money damages.

A hearing on the plaintiffs' motion for temporary injunction began on October 13, 1966, was continued several times, and concluded on July 12, 1967, when the motion was denied. On August 22, 1967, the court authorized the defendant bank to sell the remaining collateral. On November 24, 1967, the plaintiffs filed a motion for an order directing the bank to return to the plaintiffs surplus proceeds from the sale of the collateral and for certain other relief. The plaintiffs subsequently filed an amended motion in which they sought an order directing the defendants to deposit certain amounts of money with the clerk of the court until final disposition of the case. The defendants' motion to strike the plaintiffs' amended motion was granted, and the plaintiffs then filed a second amended motion for post-hearing relief. After several hearings were held on the matter, the plaintiffs' second amended motion was denied on September 22, 1969. The plaintiffs filed a notice of appeal from the order denying their motion, but the appeal was later dismissed on plaintiffs' motion.

On January 27, 1970, a new attorney filed his appearance on behalf of the plaintiffs. Plaintiffs' original attorney did not move to withdraw as counsel, but he never again participated in the case. On June 12, 1970, the court granted the plaintiffs' motion to transfer count II of the complaint to the law division of the circuit court of Cook County. The defendants moved to vacate that order, alleging that the court had heard all of the evidence concerning the alleged wrongdoing on the part of the defendants and that count II was barred on the grounds of res judicata. The court denied this motion to vacate, holding that while count I had been disposed of in the chancery division, the plaintiffs nonetheless had a right to have count II heard in the law division.

On February 23, 1972, the second attorney for the plaintiffs was granted leave to withdraw from the case. The court found that the plaintiffs had been served with notice that their counsel was seeking leave to withdraw and ordered the plaintiffs to proceed without an attorney until further order of the court. On May 18, 1972, the case was called for trial on the regular call of cases and was dismissed for want of prosecution.

On May 9, 1973, almost one year after the case was dismissed, the plaintiffs sought relief pursuant to section 72 of the Civil Practice Act by filing a petition to vacate the order dismissing the cause for want of prosecution. (Ill. Rev. Stat. 1973, ch. 110, par. 72.) It was alleged in the petition that the failure of the plaintiffs to appear in court on May 18, 1972, was the result of a "procedural misunderstanding or mistake on the part of the plaintiffs" and an accident suffered by the plaintiffs' attorney. It was further alleged that the plaintiffs had a good and meritorious cause of action.

An affidavit of Anne Sullivan was filed in support of the plaintiffs' petition. The affiant stated that she and her husband, John Sullivan, were both attorneys and that plaintiff Harry J. Diacou had conferred with John Sullivan in Sullivan's office on February 28, 1972. On that date, according to the affidavit, Diacou paid Sullivan $300 to investigate the case. The affiant further stated that, in checking Sullivan's file on the case, she found 11 pages of handwritten notes regarding the case, dated March 31, 1972, along with a letter sent by Sullivan to Harry Diacou on May 12, 1972, telling Diacou to contact Sullivan. In addition, Diacou had an office appointment with Sullivan on September 7, 1972. It was also alleged in the affidavit that John Sullivan had suffered two strokes in 1972 and that he was incapacitated as of April 26, 1973, the date on which the affidavit was signed. The affidavit states that John Sullivan was hospitalized on five occasions in 1972. The affiant further stated that she received calls from plaintiff Harry Diacou in November and December 1972, and in January 1973, about the case, that she could not find a file concerning the plaintiffs' case in John Sullivan's office, and that she finally found the file at Sullivan's apartment in February 1973. The affiant then checked the court file and discovered that the case had been dismissed for want of prosecution. On February 8, 1973, the affiant advised Diacou that he must find another attorney to represent him and that he must do so "without delay."

The affiant further stated that she received a call on February 20, 1973, from an attorney who stated that he and another attorney had spoken to Diacou and that they would like to examine the file. Because of a heavy work load, the attorneys did not pick up the file from the affiant until April 20, 1973. The section 72 petition was prepared by still another attorney and filed on May 9, 1973.

An amended section 72 petition was filed by the plaintiffs on October 23, 1973. In support of the amended petition, the plaintiffs filed an affidavit in which they stated that they had retained John Sullivan to represent them on February 28, 1972. The affiants further asserted that they had repeatedly tried to contact Sullivan after February 28, 1972, but were unable to do so. After learning on February 8, 1973, that the case had been dismissed, the plaintiffs allegedly acted diligently in retaining new counsel.

On November 21, 1973, the court heard arguments of counsel and granted the plaintiffs' amended petition to vacate the order dismissing the cause for want of prosecution. The defendants filed a timely notice of appeal from the order granting the section 72 petition. The Appellate Court for the First District reversed the judgment of the trial court, reasoning that the plaintiffs had failed to demonstrate that they acted diligently in filing their section 72 petition. (Diacou v. Palos State Bank, 31 Ill. App.3d 283.) We have granted the petitioners leave to appeal from the judgment of the appellate court.

In determining that the plaintiffs had failed to exercise due diligence in presenting their petition, the appellate court focused upon the period of time subsequent to February 8, 1973, the date on which the plaintiffs learned of the dismissal of their suit. We agree with the appellate court that the plaintiffs failed to act with due diligence during this period. Contrary to the view of the appellate court, we also consider that the petition and supporting affidavits demonstrate a lack of due diligence on the part of the plaintiffs during the entire period following the entry of the dismissal order.

Nevertheless, even if we assume that the plaintiffs acted with due diligence in learning of the dismissal and presenting their petition, they are still not entitled to relief. In Esczuk v. Chicago Transit Authority, 39 Ill.2d 464, this court had occasion to review another petition seeking to vacate a dismissal for want of prosecution. There the suit had been dismissed when the plaintiff failed to attend a pretrial conference. Although the plaintiff denied any knowledge of the conference, in her petition she attributed her failure to attend to "mere inadvertency or excusable neglect." The trial court denied the petition, brought pursuant to section 72, but the appellate court reversed. On appeal, this court reversed the judgment of the appellate court. Initially, we discussed the nature of the showing required of litigants who seek to avail themselves of section 72 relief:

"Section 72 of the Civil Practice Act substitutes a simple remedy by petition for various forms of post-trial relief and enables a party to bring before the court rendering a judgment matters of fact which, if known to the court at the time judgment was entered, would have prevented its rendition. (Brockmeyer v. Duncan, 18 Ill.2d 502; Glenn v. People, 9 Ill.2d 335.) However, a party may not avail himself of the remedy provided by section 72 `unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. [Citations.] Such a motion or petition is not intended to relieve a party from the consequences of his own mistake ...


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