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Int'l Indus. Leasing v. H.j. Coleman & Co.

OPINION FILED NOVEMBER 27, 1978.

INTERNATIONAL INDUSTRIAL LEASING, LTD., PLAINTIFF-APPELLEE,

v.

H.J. COLEMAN AND COMPANY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

The parties to this appeal have joined on the issue of whether it was error for the circuit court of Cook County to enter summary judgment on the underlying cause of action, a suit for damages under a contract. However, it is clear from the record presented on appeal that this court is without jurisdiction to reach this issue. On the contrary, the only matter properly before this court is an order entered by the circuit court more than six months after judgment was entered in the original contract action.

Before considering the merits of this order, it is appropriate to explain why this court has no jurisdiction to hear other matters associated with this cause and to present the procedural setting in which the order in question was issued.

Both of these ends may be served by reviewing the progress, if such a term be appropriate, of this cause in the circuit court. The following is a chronology of significant orders and filings as recorded in the record:

On or about January 9, 1974, plaintiff International Industrial Leasing filed a complaint alleging breach of contract and requesting damages. Shortly thereafter, defendants, H.J. Coleman and Co. and Barry H. Flisk, were served and an attorney filed an appearance on their behalf.

On February 20, 1974, an order requiring defendants to file an answer within 10 days was entered by Judge William F. Patterson. On the following May 29, an order was entered by Judge Ben Edelstein granting defendants leave to file a third-party complaint and continuing the cause until June 28, 1974. On June 28, Judge Edelstein continued the cause by agreement of the parties until November 12 of that year.

Then, on October 4, 1974, plaintiff filed an amended complaint, which pleading was verified. On October 30, plaintiff's motion for entry of a default judgment for defendants' failure to file an answer or otherwise plead was granted by Judge Edelstein.

Within 30 days, defendants filed a motion to vacate the ex parte judgment, alleging as grounds inadequate notice. On December 23, Judge Edelstein vacated the judgment and entered an order giving defendants 21 days to file an answer to plaintiff's amended complaint.

On February 10, 1975, defendants filed an answer and a counterclaim in which all of the allegations of the complaint were admitted, but the fraudulent misrepresentations of a third party were asserted as a defense and a basis for rescission of the underlying contract and return of moneys paid under it.

On February 14, Judge Robert G. Mackey entered an order striking a motion in connection with the cause, but the record does not disclose what motion was stricken. On February 20, Judge Mackey continued the cause to May 2, 1975.

On March 4, 1975, plaintiff filed a motion for judgment on the pleadings and summary judgment. On March 19, Judge Bernard B. Wolfe entered an order granting defendants 21 days to answer this motion. On April 30, 1975, Judge Charles J. Durham entered a default judgment for plaintiff.

More than 30 days later, on July 9, 1975, defendants filed a petition to vacate the judgment against them, alleging that it was entered ex parte without notice on April 4, which date was incorrect. This petition was signed under oath by defendants' counsel, William Henning Rubin. The record shows that notice of this section 72 petition was sent by ordinary mail to plaintiff's attorney, in violation of Supreme Court Rule 106 (Ill. Rev. Stat. 1977, ch. 110A, par. 106). On the same day, July 9, Judge Durham entered a draft order which, according to the copy filed in the record, set the petition to vacate for "trial" on November 12, but, according to the half-sheets appended to the record, vacated the judgment complained of and set the cause for trial on November 12.

On July 23, plaintiff again moved for summary judgment and judgment on the pleadings as to both the complaint and the counterclaim, and Judge Durham entered an order giving defendants 10 days to file pleadings, and continuing the cause to August 11.

On August 11, defendants, with leave of court, filed their answer to plaintiff's motion. This answer, signed under oath by their attorney, Rubin, basically stated that their answer to the complaint ...


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