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Mitchell v. Seidler

OPINION FILED JANUARY 4, 1979.

MARY MITCHELL, PLAINTIFF-APPELLANT,

v.

SANDY SEIDLER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

On April 21, 1971, plaintiff, Mary Mitchell, filed an action in the Circuit Court of Cook County against defendant, Sandy Seidler, seeking recovery for personal injuries plaintiff allegedly sustained in an automobile accident. Following negotiations, plaintiff's attorney and defendant entered into a settlement agreement and the action was dismissed.

Twenty-one months later, plaintiff filed a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) to vacate the dismissal order, alleging: (1) that she had not been informed of defendant's settlement offer; and (2) that she had not authorized her attorney to accept the offer. The petition was denied. Plaintiff appeals, contending the trial court abused its discretion in denying the section 72 petition.

We affirm the trial court.

The pertinent facts disclose plaintiff's filing of the personal injury action on April 21, 1971. On January 1, 1975, neither plaintiff nor her attorney appeared in court for trial, and the case was dismissed for want of prosecution.

On April 24, 1975, plaintiff, by way of a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72), sought to vacate the January 1, 1975, dismissal order. Plaintiff's petition was granted. In its order reinstating the case, the trial court noted:

"It has been represented to the Court by counsel for the parties that said cause has been settled by agreement * * *."

Based upon this representation, the trial court thereupon dismissed the reinstated action without costs.

On January 31, 1977, 21 months after the case had been settled and dismissed, plaintiff filed another section 72 petition, this time seeking to vacate the April 24, 1975, dismissal order. This section 72 petition is not verified, is not supported by affidavit(s), and is not signed by plaintiff. The only signature which appears on the petition is that of plaintiff's attorney, William Maddux.

Plaintiff's section 72 petition provides in pertinent part:

"1. That MARY MITCHELL * * * filed the * * * action for personal injuries sustained when the automobile in which she was riding was struck in the rear by the automobile driven by the Defendant, SANDY SEIDLER.

3. That during the pendency of this litigation MARY MITCHELL moved to Rt. 1, Box 23H, Lumberport, West Virginia, and that the Petitioner was residing at said address on April 24, 1975.

4. That on April 24, 1975, while the Petitioner was residing in Lumberport, West Virginia, a settlement offer of $8,500.00 was made by the Defendant's attorney and accepted by the attorney representing MARY MITCHELL.

5. That the Petitioner, MARY MITCHELL, was never informed of the $8,500.00 settlement offer and did not and would not authorize her attorney to accept $8,500.00 as ...


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