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Slade v. Bowman

OPINION FILED MAY 9, 1977.

SHIRLEY SLADE, N/K/A SHIRLEY FORPE, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

PAUL BOWMAN, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY A. ISEBERG, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

On November 29, 1973, plaintiff, Shirley Slade, filed a complaint in the circuit court of Cook County against Paul Bowman for damages arising out of injuries she allegedly sustained in an automobile accident. On September 16, 1975, the case was dismissed by the court on its own motion for want of prosecution because service of summons had not yet been obtained on the defendant. On December 22, 1975, plaintiff filed a motion to vacate the order of September 16, 1975. This motion was not verified nor supported by affidavit and gave no reasons in support thereof. On January 7, 1976, the trial court found that the failure to serve the defendant was not occasioned by the fault of the plaintiff and ordered the September 16, 1975, order of dismissal vacated. An alias summons issued and service was effected on the defendant on January 14, 1976. Defendant then filed an appearance and motion to vacate the order of January 7, 1976, and the trial court set a hearing for this motion on April 5, 1976. On April 2, 1976, plaintiff filed a verified petition citing section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72), and asked the court to vacate its order of September 16, 1975. In this petition plaintiff contended that she had diligently attempted to serve the defendant and set forth the following pertinent facts: that shortly after filing her lawsuit, plaintiff caused summons to issue directing the sheriff to serve defendant at his address as shown in the police report; that the sheriff's return advised that the above address was vacant property; that an alias summons was issued forthwith directing that the defendant be served by the Sheriff of Cook County at his place of employment; that said summons was returned "not found" and indicated that the defendant was on vacation and might not return to his place of employment; that the plaintiff then employed a professional skip-tracer to locate the defendant; and that the defendant was finally located at the address originally contained in the police report; and that summons again issued and defendant was finally served.

After the hearing on April 5, 1976, the trial court entered the following order:

"This cause coming on to be heard on defendant's motion to vacate the Order of this Court of January 7, 1976, vacating this Court's Order of Dismissal of September 16, 1975, It is hereby ordered that said Motion is sustained; This cause then further coming on to be heard on Plaintiff's Petition, pursuant to Section 72 of the Illinois Civil Practice Act to vacate this Court's Order of September 16, 1975, the defendant opposing the filing of the said Petition but not requesting leave to answer the same, the Court having heard arguments of counsel thereon,

IT IS ORDERED that leave is given Plaintiff to file said Section 72 Petition, and it is further ordered that this Court's Dismissal Order of September 16, 1975 is vacated nunc pro tunc as of September 16, 1975, and this cause is reinstated nunc pro tunc as of that date, pursuant to the prayer of the said Section 72 Petition."

Defendant now appeals from that part of the order granting the section 72 petition and plaintiff cross appeals from that part of the order granting defendant's motion to vacate the order of January 7, 1976.

Defendant contends that the trial court erred in granting the section 72 petition because (1) defendant never received proper notice of the filing of said motion; (2) that the petition was not timely filed; and (3) that the petition did not set forth adequate reasons for the delay in service of summons. Although plaintiff cross appeals from that part of the order granting defendant's motion to vacate the order of January 7, 1976, she does not argue this point in her brief.

We affirm.

We will first consider plaintiff's cross-appeal concerning the propriety of that part of the trial court's order granting defendant's motion to vacate the order of January 7, 1976. Defendant contends that the trial court correctly vacated the January 7 order reinstating the case because the order of January 7 was entered pursuant to an unverified motion, made over thirty days after the case had been dismissed.

• 1 As this court stated in Trojan v. Marquette National Bank (1967), 88 Ill. App.2d 428, 436, 232 N.E.2d 160, 165:

"A dismissal for want of prosecution is, in essence, an involuntary non-suit and is a final and appealable order over which the trial court retains jurisdiction for a period of 30 days, to entertain motions such as plaintiffs' here. Ill Rev Stats (1965), c 110, par 50(6), Athletic Ass'n of University v. Crawford, supra. The court retains the inherent power to vacate any of its judgments within 30 days upon good cause shown. In re Estate of Smith, 41 Ill. App.2d 86, 190 N.E.2d 175 (1963); Gilmer v. Dunn, 59 Ill. App.2d 202, 208 N.E.2d 85 (1965)."

Conversely, 30 days after a judgment is entered the trial court loses such jurisdiction.

In Diner's Club, Inc. v. Gronwald (1976), 43 Ill. App.3d 164, 167, 356 N.E.2d 1261, 1264, this court considered a question similar to that involved in the instant case and stated:

"[A] petition to set aside an ex parte judgment which is verified and filed more than 30 days after the judgment is entered, will be construed as having been filed under section 72 of the Civil Practice Act. (Werth Industries, Inc. v. ...


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