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Collins v. Prestige Casualty Co. of Skokie

OPINION FILED NOVEMBER 17, 1977.

ETHEL J. COLLINS, PLAINTIFF-APPELLEE,

v.

PRESTIGE CASUALTY COMPANY OF SKOKIE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 13, 1977.

This is an appeal from an order by the circuit court of Cook County denying a petition, filed by Prestige Casualty Company of Skokie, a corporation (hereinafter "defendant"), to vacate an ex parte judgment entered against it. The judgment sought to be vacated was upon an action brought by Ethel J. Collins (hereinafter "plaintiff") to recover actual and punitive damages from the defendant for failure to repair her auto and return it pursuant to an insurance policy issued by the defendant to the plaintiff.

The issues presented for review are (1) whether the circuit court's finding there was no motion to vacate filed within 30 days of the default judgment was contrary to the manifest weight of the evidence; and (2) whether it was an abuse of discretion for the circuit court to deny defendant's petition under section 72 (Ill. Rev. Stat. 1975, ch. 110, par. 72).

Plaintiff filed suit against the defendant for failure to repair and return her auto, pursuant to a policy of insurance. The complaint prayed for the recovery of actual and punitive damages.

The defendant was duly served with summons and on the return date, August 8, 1975, defendant failed to appear. A hearing on plaintiff's motion for judgment occurred on September 12, 1975. After that hearing the court entered judgment against the defendant in the sum prayed for in the complaint, plus costs.

On September 29, 1975, counsel for the defendant presented a motion to strike and dismiss the complaint. No written motion was made by the defendant to vacate the judgment previously entered.

The matter was continued until November 19, 1975, and then continued until December 29, 1975. On that date, the court observed the outstanding judgment entered on September 12, 1975, and ordered the motion to strike and dismiss stricken. The court then ordered the defendant to file a petition pursuant to section 72 of the Civil Practice Act within 10 days, with leave to the plaintiff to answer 10 days thereafter. The hearing on defendant's section 72 petition was then continued until February 9, 1976.

When the cause came up for a hearing on February 9, 1976, the defendant had not filed its section 72 petition as ordered by the court. Counsel for the defendant represented to the court the attorney who was to prepare the petition was out of the country and requested additional time in which to file its petition. The court granted the defendant's request for additional time, and continued the hearing on the section 72 petition until March 3, 1976.

On March 3, 1976, the defendant had still failed to file a section 72 petition, in disregard of the court's orders of December 29, 1975, and February 9, 1976.

The defendant filed its petition pursuant to section 72 on March 10, 1976, and the plaintiff filed an answer thereto on March 19, 1976. The court, after reviewing the court records and hearing extensive argument of counsel, observed there was no reference to a prayer to vacate the judgment in the motion to strike and dismiss, and no reference in the court's half-sheet as to defendant's argument an oral motion to vacate was made on September 29, 1975. The court concluded a motion to vacate the judgment had been neither entertained nor ruled upon by the court on September 29, 1975.

In considering the sufficiency of defendant's petition for relief under section 72, the court noted the series of proceedings which had transpired and ruled the defendant had failed to exercise due diligence in bringing its section 72 petition. Accordingly, the defendant's petition for relief under section 72 was denied.

Defendant argues the court's finding there was no motion to vacate filed on September 29, 1975, was contrary to the manifest weight of the evidence. On that date, counsel for the defendant first appeared in court and presented to the court a motion to strike and dismiss the complaint, along with a notice of motion to vacate the default judgment. No written motion was made by defendant to vacate the judgment previously entered and no transcript of the proceedings was made.

At a subsequent hearing on the cause the court observed there was no reference to a prayer to vacate the judgment in the motion to strike and dismiss, and no reference in the court's half-sheet on September 29, 1975, as to defendant's argument an oral motion to ...


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