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Lettvin v. Suson

OPINION FILED JUNE 29, 1978.

NORMAN LETTVIN ET AL., PLAINTIFFS-APPELLEES,

v.

MORRIS SUSON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. MARTIN G. LUKEN, Judge, presiding.

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

This was an action brought by a firm of attorneys to collect a balance claimed due as attorneys' fees. A default judgment was entered against the defendants, and a subsequent motion to vacate that judgment was denied by the trial court. Defendants appeal from that judgment.

We reverse.

The complaint filed in this action alleged that the defendants had retained the plaintiff law firm to represent them in a matter before the United States District Court for the Northern District of Illinois, and that defendants had refused to pay the balance owed plaintiffs for services rendered on their behalf.

The defendants, in their answer to the complaint, inter alia, specifically denied any indebtedness to the plaintiffs. From the record, it then appears that at the time the matter was set for trial, defendants did not answer the call. A jury was empanelled, evidence was introduced, and the judgment appealed from herein was entered in the amount of $4447.60, plus costs and interest. The defendants were not present and did not participate in the proceedings. Within 30 days of its entry, the defendants filed a motion to vacate the judgment entered therein and by affidavit swore that no sums were due plaintiffs, and that at the time set for trial defendants' attorney was engaged in another trial in Florida, and that the information concerning the whereabouts of the defendants' counsel was given to the trial court. No counteraffidavits were filed by the plaintiffs. The motion was denied.

The Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 50(5)) provides as follows:

"The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable."

Thus, the sole issue before us is whether the trial court's failure to set aside the default judgment was a denial of the defendants' right to substantial justice.

Illinois courts> have historically been liberal in setting aside default judgments where it appears that justice would be better served by allowing the matters to be tried on their merits. (Mason v. McNamara (1870), 57 Ill. 274, 277; Belline v. Italia (1971), 133 Ill. App.2d 400, 401, 273 N.E.2d 413, 414.) In Hoffman v. Hoffman (1976), 37 Ill. App.3d 415, 346 N.E.2d 114, the court said:

"The discretion of a trial court to set aside a judgment on a petition filed within 30 days after entry of judgment (under section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 50(5) is to be liberally exercised in order to promote justice." Hoffman, 37 Ill. App.3d 415, 417.

Prior to its decision in Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App.2d 102, 167 N.E.2d 799, the courts> generally required that motions made under section 50(5) establish a good and meritorious defense supported by affidavit. However, in Widicus, the court further liberalized its position with respect to vacating default judgments and said:

"[W]e do not believe that a court now must categorically determine that a meritorious defense or a reasonable excuse be proven to justify setting aside a default. We believe that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice." (Widicus, 26 Ill. App.2d 102, 108.)

The court went on to say:

"The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of ...


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