Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garcia v. Lozada

OPINION FILED MARCH 31, 1978.

EPIFANIA GARCIA, PLAINTIFF-APPELLEE,

v.

GALO LOZADA ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EMANUEL A. RISSMAN, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action to recover damages for personal injuries sustained in a building owned by defendants. Nearly one year after the case was ordered dismissed by agreement of the parties, the circuit court granted plaintiff's motion to vacate the dismissal, set the cause for trial and entered an ex parte judgment against the defendants. The circuit court denied defendants' petition for relief from the vacatur and the ex parte judgment, and defendants have brought this appeal.

We reverse. The pertinent facts follow.

On October 4, 1972, plaintiff filed suit alleging her injury in a fall on a negligently maintained common stairway located in rental property owned by defendants. A default judgment was entered against defendants on September 10, 1973. On October 10, 1973, defendants' motion to vacate the default judgment was entered, and on January 8, 1974, the judgment was vacated and defendants ordered to file their appearance and answer within 28 days. On January 9, 1974, the cause was dismissed for want of prosecution. Defendants filed their appearance and answer on February 1, 1974, and plaintiff initiated discovery proceedings.

Pursuant to plaintiff's petition, the dismissal of January 9, 1974, was vacated and plaintiff's claim was reinstated on August 6, 1974. Following further attempts at discovery, the court entered an order setting the time within which the parties were to complete discovery and set the cause for trial on October 28, 1974.

On October 28, 1974, defendants entered a motion to strike plaintiff's pleadings. That motion and the trial were continued to November 1, 1974, at which time the court entered the following order:

"By agreement between the parties hereto, it is ordered by the Court that this suit be and the same is hereby DISMISSED without costs."

No further proceedings appear of record until September 29, 1975. Plaintiff then filed a notice of motion with proof of service by mail on defendants' attorney, setting forth that on that date counsel would

"* * * move to vacate the court's order of dismissal by agreement entered on November 1, 1974 and to enter judgment in the sum of $900.00 plus costs as per the agreed settlement figure for the reason that the defendants have failed to and refused to tender the agreed sum to the plaintiff."

The motion was entered and continued to October 14, 1975. No proceedings appear in the record for the latter date. On October 20, 1975, an order was entered sustaining the motion to vacate and setting the cause for trial on November 10, 1975. On the latter date, an ex parte judgment for $4000 was entered against defendants.

On April 13, 1976, defendants filed a verified petition to vacate all orders entered after the dismissal order of November 1, 1974, claiming the trial court was without jurisdiction to vacate the dismissal order. The petition alleged that the parties agreed to settle the matter for $750 to be paid by defendants to plaintiff, that defendants were without notice of the November 10, 1975, trial date, and that they had no knowledge of the $4000 judgment until after March 1, 1976, following the service of summons on February 26, 1976, in garnishment of a bank account of one of the defendants. Plaintiff filed a response that the agreed settlement was $900 rather than $750 and had not been paid, to which defendants filed a reply. Upon hearing defendants' petition was denied. Defendants appeal from the order denying their petition.

OPINION

The defendants first contend that the trial court was without jurisdiction to vacate the agreed dismissal order entered November 1, 1974.

• 1 The dismissal order in question was a final order and relief from it could be sought only as provided by section 50 or section 72 of the Civil Practice Act. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.