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Asumendi v. Fortman

OPINION FILED MARCH 8, 1978.

JOHN MARK ASUMENDI, PLAINTIFF-APPELLANT,

v.

LOU FORTMAN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kane County; the Hon. DONALD T. ANDERSON, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The plaintiff appeals from an order of the trial court which denied his motion to reinstate an order of judgment by default, sustained the defendant's motion to strike the plaintiff's motion to amend his complaint, and dismissed the complaint.

The plaintiff sued the defendant for breach of contract. He alleged the defendant agreed to make certain repairs to plaintiff's Jeep and was paid for such repairs, but that the defendant did not make the repairs properly and after failing to get satisfaction from the defendant, the plaintiff finally had to have the same work done over again by another repair man. The plaintiff claimed $1,000 in damages due to the defendant's breach of contract.

The plaintiff filed a suit pro se for $1,000 damages in small claims court on August 25, 1975. On the return date, the defendant appeared in court and the matter was set for trial on December 1, 1975. On that date the plaintiff appeared in court with two witnesses, but the defendant failed to appear. The small claims court judge, Judge Anderson, entered a default judgment in the amount of $1,000, plus costs. The plaintiff notified the defendant of the default judgment against him.

On December 31, 1975 (30 days after the default judgment), the defendant appeared in court, after proper notice, and moved to vacate the judgment. In the absence of Judge Anderson, the judge who had granted the default judgment, the motion to vacate was argued before Judge Petersen and he denied the motion.

On January 16, 1976, the defendant gave notice of his intention to appear on January 27 and to present another motion to vacate the judgment. This motion alleged a meritorious defense and was presented before Judge Anderson. Plaintiff's counsel appeared on January 27, 1976, and filed an answer to defendant's motion entitled "Answer to Motion to Vacate Order of December 31, 1975, Denying Motion to Vacate Judgment," in which he asked the court to deny defendant's motion of January 27 to vacate the judgment. He did not contest the jurisdiction of Judge Anderson.

The matter was continued to February 10, 1976, and the next pleading in the record is an order by Judge Anderson dated March 3, 1976. This order stated that the court had heard the arguments of counsel on the motion of the defendant to vacate the default judgment and that said motion was granted and the judgment vacated. Trial on the merits was set for June 10, 1976.

We must assume that the matter was continued on June 10, as the next document in the record is an order by Judge Anderson dated July 13, 1976, indicating that the defendant had filed a motion to dismiss the complaint, which motion was granted and the complaint was dismissed instanter, with leave to file an amended complaint within 28 days.

Next in the record is an order by Judge Anderson dated September 7, 1976, denying the plaintiff's motion for additional time to file an amended complaint and dismissing the complaint with prejudice. There next appears in the record a motion by the plaintiff, filed on October 6, 1976, explaining in detail all that had previously transpired, contending that all orders entered after December 31, 1975, were a nullity and asking the court to reinstate the default judgment of December 31, 1975, or "in the alternative" to vacate the order of September 7, 1976, and grant the plaintiff leave to file his amended complaint.

The next order in the record is the court's order of October 6, 1976, continuing the matter to January 19, 1977, for argument on the plaintiff's motion. On January 19, 1977, the defendant submitted a motion to the court, asking the court to strike and dismiss the plaintiff's motion of October 6, 1976, on the ground that the court's order of September 7, 1976, was a final appealable order, but that it had not been appealed within 30 days and therefore the court presently lacks jurisdiction to enter any further order in the case.

On January 19, 1977, the court denied the plaintiff's motion of October 6, 1976, granted the defendant's motion to strike and dismiss the plaintiff's motion of that date and ordered appeal bond to be set at $750.

The order of default judgment giving judgment in favor of the plaintiff for $1,000 and costs, dated December 1, 1975, was a final appealable order. It could have been appealed any time within 30 days. Within 30 days — on December 31, 1975 — the defendant moved to vacate the default judgment and this was denied. The order denying the motion to vacate the judgment was also a final appealable order. Thus there was a final appealable order pending at the time the defendant moved again, on January 27, 1976, to vacate the default judgment. What did the plaintiff do at this point? On February 9, 1976, the plaintiff filed an answer to the motion of January 27, 1976, which contained seven paragraphs and did not deny the defendant's allegations concerning his meritorious defense and did not dispute the jurisdiction of the original judge to continue the case. It is true that there was a paragraph in the answer in which the plaintiff asserted, "[t]hat Defendant's present Motion only seeks to rehash the matters presented before Judge Petersen on December 31, 1975, and is presented to this Court only for delay," however there was nothing in the previous record to indicate that Judge Petersen, who was the motion judge at the time, was informed of or considered any of the allegations regarding defendant's defense mentioned in his motion of January 27, 1976, so it is by no means certain that the motion of January 27, 1976, was a mere rehashing of the previous motion. Plaintiff's answer to the defendant's motion of January 27 did not contest jurisdiction on the basis, later advanced, that jurisdiction had been lost to Judge Anderson because more than 30 days had elapsed since his original default judgment.

Instead of standing on the jurisdictional question, the plaintiff, after the matter was continued, on March 3, 1976, participated in further arguments on defendant's motion to vacate the default judgment and at that time the judgment was vacated by Judge Anderson and the matter set for trial on the merits. After another continuance, the defendant on July 13, 1976, moved to dismiss the complaint, which motion was granted and the plaintiff was given 28 days to file an amended complaint.

The next action on this case is quite significant. The plaintiff failed to file an amended complaint within the 28 days allowed, but on September 7, about 54 days after the date of July 13, he appeared and moved for leave to file an amended complaint instanter. There is nothing in the record to suggest that the plaintiff at that time contested the jurisdiction of the court and logically we do not see how the plaintiff could move for leave to file an amended complaint instanter and not, by so doing, waive the jurisdictional question which he invoked in his later motion of October 6, 1976. Indeed, even the plaintiff's motion of October 6 first seeks reversal of the court's denial of the ...


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