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Danaher v. Knightsbridge Co.

OPINION FILED JANUARY 9, 1978.

ROBERT W. DANAHER ET AL., PLAINTIFFS-APPELLANTS,

v.

KNIGHTSBRIDGE COMPANY ET AL., DEFENDANTS. — (WILLIAM BIBO, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE McGLOON delivered the opinion of the court:

Plaintiffs Robert and Doris Danaher filed suit to recover damages incurred from defendants' breach of contract. A default judgment was entered against all defendants on April 18, 1975. On January 4, 1977, defendant Bibo filed a petition for relief from judgment pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). The motion was granted the same day and on January 11, 1977, defendant Bibo filed a motion to dismiss the complaint pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45). The motion to dismiss was granted on January 20, 1977, and on February 16, 1977, plaintiffs filed the instant appeal.

On appeal plaintiffs argue that the trial court erred (1) in vacating the default judgment against Bibo because Bibo's attorney was negligent in failing to file an answer to the complaint; and (2) in granting Bibo's motion to dismiss the complaint.

We reverse and remand with directions.

The facts are not disputed. Plaintiffs Robert and Doris Danaher filed suit for breach of contract against defendants. According to the contract, Knightsbridge Company was to construct and sell a dwelling to plaintiffs. A default judgment of $17,526 was entered against defendants on April 18, 1975.

On January 4, 1977, defendant Bibo filed a petition for relief from judgment pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). In substance Bibo alleged that he did not sign the contract and that he had never been an officer, employee or shareholder in defendant Knightsbridge Company. He further alleged that the default judgment entered against him was improper because his attorney assured him that all matters would be resolved, and then failed to file an answer to the complaint. Bibo's motion was granted that same day.

On January 11, 1977, Bibo filed a motion to dismiss the complaint pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 100, par. 45). In establishing grounds for granting the motion, Bibo alleged the same matters set forth earlier in his petition for relief from judgment. The motion to dismiss was granted on January 20, 1977.

In the order granting the motion to dismiss, the trial court struck paragraphs 4, 5 and 6 of an affidavit submitted by plaintiff Doris Danaher in response to Bibo's motion to dismiss. The trial court did not state the reason why these paragraphs were struck. Paragraphs 4 and 5 alleged that Bibo was present when the contract was signed and that he held himself out to be a partner in the Knightsbridge Company. Paragraph 6 alleged that the affiant was not aware that defendant Knightsbridge was a corporation due to the fact that the contract referred only to "Knightsbridge Company." Consequently, based on the complaint, contract, and supporting affidavits, the trial court held that no cause of action existed with respect to Bibo as a matter of law.

On February 16, 1977, plaintiffs filed the instant appeal. Plaintiffs argue that the trial court erred in (1) vacating the default judgment against Bibo because the negligence of Bibo's attorney in failing to file an answer to the complaint or in otherwise appearing, should be imputed to Bibo; and (2) in granting Bibo's motion to dismiss the complaint.

We first consider plaintiffs' contention that the trial court erred in granting Bibo's petition for relief from the default judgment.

• 1, 2 An appeal is perfected by filing a notice of appeal and the notice of appeal is the only jurisdictional step in the appellate process. (Wells v. Kern (1975), 25 Ill. App.3d 93, 322 N.E.2d 496.) Supreme Court Rule 303 provides further that:

"* * * the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or non-jury case, within 30 days after the entry of the order disposing of the motion. * * *" (Ill. Rev. Stat. 1975, ch. 110A, par. 303(a).)

Here Bibo's petition seeking relief from judgment was granted on January 4, 1977. However, plaintiffs did not file their appeal from that order until February 16, 1977. Because more than thirty days elapsed before the appeal was filed, this court lacks jurisdiction to ...


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