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Williams v. City of Chicago

OPINION FILED NOVEMBER 18, 1977.

MILDRED WILLIAMS, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES. — (ARBYLE JOHNSON ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. RUSSELL R. DeBOW, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendants, City of Chicago and Jimmie V. Bryant, appeal from the entry of a default judgment and from an order assessing attorney's fees against them in favor of plaintiff, Mildred Williams. Defendants contend that the trial court abused its discretion in entering a default judgment against them for failure to answer interrogatories, where the answers were later filed and the default order was used to enforce an order for plaintiff's attorney's fees and costs awarded under Supreme Court Rule 219(c). (Ill. Rev. Stat. 1973, ch. 110A, par. 219(c).) Plaintiff cross-appeals from the trial court's denial of her further motion for fees and costs pursuant to section 41 of the Civil Practice Act. Ill. Rev. Stat. 1973, ch. 110, par. 41.

On January 16, 1975, plaintiff brought an action against the City of Chicago, Jimmie Bryant and other named defendants, alleging that Bryant, a Chicago police officer, had assaulted her and inflicted injuries. Plaintiff served interrogatories upon the City and Bryant on March 19. Thereafter, plaintiff filed an amended complaint against all defendants. The City and Bryant answered the amended complaint on May 9 and denied the allegations.

On June 20, 1975, plaintiff presented a motion that defendants' answer be stricken for failure to answer the interrogatories, and the trial court ordered that defendants answer the interrogatories within 21 days. On July 14, defendants' answer was stricken for failure to answer the interrogatories; judgment for liability was entered in favor of plaintiff, and the cause was transferred for prove-up of damages.

Defendants filed answers to the interrogatories on August 6 subscribed only by the City. On August 7, the trial court vacated the default judgment provided that defendants pay plaintiff's attorney $433 as fees and costs for good cause shown; further, defendants' answers to the interrogatories were stricken and defendants were ordered to file signed and sworn answers. Defendants filed amended answers to the interrogatories on September 3.

On September 12, plaintiff presented a motion that the order of August 7 be vacated and that the default and judgment of liability against defendants be reinstated. In support of the motion plaintiff alleged that defendants failed to pay the sum of $433 in fees and costs within the time provided by the August 7 order; that plaintiff be awarded reasonable fees and costs necessary to enforce the order, and alternatively that defendants' answer to interrogatory 6 be stricken. On September 22 Bryant filed a second amended answer to a certain interrogatory (No. 6).

On October 6, the trial court vacated its order of August 7. The order striking defendants' answer and entering judgment for liability was thereby reinstated. The matter was again referred for prove-up of damages. Defendants' oral motion on October 30, for the entry of an order permitting an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1973, ch. 110A, par. 308), was denied.

On November 19, defendants presented a motion to vacate the judgment of liability against them. In support of the motion defendants alleged that although the trial court had ordered defendants to pay the sum of $433, defendants did not comply because among other things "it was the opinion of the corporation counsel that the sum could not be paid without being reduced to judgment." Defendants further stated that notwithstanding the aforesaid, the sum of $433 was thereby tendered "only in the interest of expediting this case so that further discovery * * * may proceed." In answer to the motion plaintiff alleged that due to defendants' delay, her attorney "has expended numerable hours of time; to allow and grant the relief sought by the petitioners at the present time for the mere tender of $433 would be unconscionable * * *." Defendants' motion was denied.

On November 20, a prove-up was held on the issue of damages before a jury, and judgment was entered in favor of plaintiff in the amount of $52,500.

On November 21, plaintiff's attorney filed a motion pursuant to section 41 of the Civil Practice Act for attorney's fees in the amount of $2388. The motion was denied.

OPINION

I.

Defendants argue that the trial court abused its discretion in striking defendants' pleadings and entering a default judgment for failure to answer interrogatories since the answers were later filed and the default order was used to enforce an order awarding plaintiff's attorneys' fees and costs.

The sanctions which may be imposed by a trial court to compel compliance with rules or orders relating to discovery are set forth in Supreme Court Rule ...


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