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In Re Estate of Reilly

OPINION FILED JANUARY 25, 1979.

IN RE ESTATE OF JESSIE D. REILLY. — (SEYMOUR VELK, PETITIONER-APPELLANT,

v.

ESTATE OF JESSIE D. REILLY, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY KOGUT, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The issue in this case is whether the trial court erred in refusing to open, under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72), a judgment dismissing a petition to appoint a conservator nearly two years after its dismissal, at the request of the attorney for the original petitioner who wishes belatedly to collect attorney's fees from the alleged incompetent's estate; neither the incompetent nor the estate were located in Illinois at the time the section 72 petition was filed. We find no error and affirm.

On November 16, 1971, Reverend Mark A. Finan filed a petition to have a conservator appointed for Jessie D. Reilly. The attorney for Finan was the present petitioner, Seymour Velk. Apparently, in 1971, Jessie Reilly lived in Chicago. However, as revealed by the petitioner's affidavit, she fled the State, going to Ohio. There she consented to the appointment of an Ohio conservator. *fn1

According to the petitioner, the Illinois trial court on April 4, 1975, *fn2 granted the defendant's motion to dismiss the petition to appoint the conservator. Since the defendant's motion to dismiss was not included as part of the record on appeal, since the report of proceedings was not included in the record and since, if the court filed an opinion, it also was not included in the record, it is impossible for us to know on what grounds the petition was dismissed. It is clear, however, from the language of the order that the petition was not dismissed for want of prosecution, although apparently neither Mark Finan nor the petitioner, Seymour Velk, was present when the order was entered. According to Velk, they were absent because of a clerical error in Velk's office.

According to the petitioner's affidavit, he had intended, at the time of the dismissal, to petition the court for reimbursement of expenses advanced by him and for reasonable attorney's fees. Within 30 days of April 4, 1975, he served notice of a motion to vacate the judgment on the defendant's Illinois attorney. He did not, however, file the motion in court within 30 days as is required. For this reason, the petition was denied. The judge, according to Velk's affidavit, told him that if he filed a petition to vacate the judgment pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72), *fn3 the judge would vacate the dismissal order and open the judgment for the purpose of allowing a petition for expenses and attorney's fees. Shortly after this, one of Velk's files pertaining to the case was misfiled. Velk does not allege that any search was made, at that time, for the misplaced file. In April 1976, the petitioner commenced moving his law office to a new location; the move took several months. Some of Velk's files, including the files in the Reilly case, were misdirected by the mover to the location where the closed files were stored; it took several months of digging through the old files to locate the needed Reilly documents. Velk claims he needed these documents to show he had a meritorious claim because without them the needed detailed allegations could not have been made. Attached to the affidavit is an 11-page schedule of time expended and monies advanced.

• 1 On March 31, 1977, just four days before the end of the two-year period provided for in section 72 of the Civil Practice Act, Velk finally filed his petition for an order vacating and setting aside the order of April 4, 1975, and opening the judgment for the sole purpose of allowing him to petition for attorney's fees and expenses. Reilly's attorney moved to dismiss the petition on the grounds that the court did not have jurisdiction and Velk lacked standing to file the petition since he was not a party to the original proceeding. After a hearing, the petition was dismissed on August 12, 1977. Again, since the report of proceedings on August 12, 1977, was not included in the record on appeal, and since the trial judge made no findings, we do not know on what grounds the action was dismissed. Under Illinois jurisprudence, when the record is not complete we must presume that the absent portions would have supported the judgment of the trial court. Lemons v. Lemons (1978), 57 Ill. App.3d 473, 373 N.E.2d 544; 2 Ill. L. & Prac. Appeal and Error §§ 713, 714, 725 (1953).

We affirm the judgment of the trial court both because it lacked jurisdiction to open the judgment and because, even if jurisdiction existed, the petitioner failed to show he had exercised due diligence.

I.

A

• 2 The trial court had no jurisdiction to open the judgment because the petitioner was not a party to the original proceedings.

There can be no question that under Illinois law an attorney is not a party to a proceeding brought by his client. (Chicago Title & Trust Co. v. Guaranty Bank & Trust Co. (1978), 59 Ill. App.3d 362, 375 N.E.2d 522.) The petitioner does not claim that he was. The petitioner, however, contends that since he could have filed a petition in his own name in the original proceedings to recover attorney's fees and expenses, he can seek to reopen the proceedings for the same purpose. Case law, however, is to the contrary. In Ratner v. Bakery and Confectionery Workers International Union of America (D.C. Cir. 1968), 394 F.2d 780, the attorneys sought to reopen a case after it had been settled and dismissed so that they could recover attorney's fees. The court, while agreeing that the attorneys might have been able to file such a petition while it was still in progress, held that the attorneys, not being parties to the proceedings, could not seek to have the judgment opened after it had become final.

• 3 It is true that section 72, unlike its Federal code counterpart, Rule 60(b) (Fed. R. Civ. P. 60(b)), does not expressly limit its availability "to a party or his legal representative." However, section 72 expressly states that bills of error coram nobis, coram vobis, writs of audita querela, bills of review and bills in the nature of bills of review are all abolished and all relief heretofore obtainable and the grounds for such relief heretofore available, whether by such remedies or otherwise, is available by means of a section 72 petition. Under the old procedures it was well established that if the court had jurisdiction of the parties and the subject matter the judgment could not be attacked by one not a party to the proceedings. (Martin v. Judd (1871), 60 Ill. 78; Magnusson v. Cronholm (1893), 51 Ill. App. 473; Canty v. Kelley (1910), 154 Ill. App. 283.) The limitations of the older procedures are carried over into that created by section 72. It is still the law that only one who is a party or privy to the record, or who was injured by the judgment and who will derive benefit from its reversal, or who is competent to release error can seek relief under section 72. (Frandsen v. Anderson (1969), 108 Ill. App.2d 194, 247 N.E.2d 183.) Thus, in Frandsen, the court held that an attorney sued by his client for malpractice had no standing to have set aside under section 72 the original judgment against his client.

B

Furthermore, we hold that the court lacked jurisdiction because section 72 was never intended to permit a person not a party to the action to intervene after final judgment and reopen ...


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