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Ruttenberg v. Red Plastic Co.

OPINION FILED FEBRUARY 6, 1979.

DAVID C. RUTTENBERG ET AL., PLAINTIFFS-APPELLEES,

v.

RED PLASTIC COMPANY, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS ROSENBERG, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant, Red Plastic Company, Inc., appeals from an order of the circuit court of Cook County entered on August 22, 1977, denying its petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) to vacate an ex parte judgment entered on April 13, 1977.

The critical question is whether this court has jurisdiction.

The relevant facts follow. The controversy arose out of alleged defects in certain skylights purchased by the plaintiffs, David C. Ruttenberg and Roger F. Ruttenberg, allegedly manufactured and sold by defendant, Red Plastic Company, Inc. On July 22, 1976, plaintiffs filed a complaint in the circuit court of Cook County against defendant seeking property damages. On August 10, 1976, summons was personally served in California on the president of the defendant company, who forwarded it to the defendant's insurance company.

By stipulation of the parties, defendant's time to answer the complaint or appear was extended to February 15, 1977. No answer was filed nor appearance made on this extended date. A month later, on March 17, 1977, a default judgment was entered against defendant. On April 13, 1977, judgment was entered against defendant following an ex parte prove-up of damages.

On May 6, 1977, the 23rd day after entry of the ex parte judgment, plaintiffs by telephone informed the defendant's insurance company of the judgment. Defendant's insurance company was unable to contact its attorney until May 9, 1977. On May 10, 1977, defendant's attorney contacted the plaintiffs who orally agreed not to contest defendant's motion to vacate the ex parte judgment provided the proper notice and petition were filed.

On May 12, 1977, the 29th day after judgment, defendant's attorney, without notification to the plaintiffs, met with the trial judge who entered the ex parte judgment and told him of plaintiffs' oral agreement. The judge told him to obtain a stipulation from plaintiffs to that effect; that if plaintiffs would not so stipulate, defendant should come in on a motion to vacate before 30 days expired; and that if he was unable to do so, he would have to file a section 72 petition. On this same day, after meeting with the judge, defendant's attorney hand-delivered a notice of the motion to vacate and the accompanying motion to the plaintiffs' office. The notice of the motion advised plaintiffs that a hearing on the motion to vacate would be held on May 18, 1977. For reasons not explained in the record, defendant did not file this notice and motion to vacate with the clerk of the circuit court until May 18, 1977, the 35th day after the judgment.

On May 13, 1977, the 30th day after judgment, plaintiffs told defendant's attorney that they would contest the motion to vacate unless defendant waived its jury demand. After checking with the insurance company, defendant's attorney informed plaintiffs, on May 16, 1977, that the defendant's insurance company would not agree to this request.

The hearing was held on May 18, 1977, the 35th day after judgment. The trial judge found defendant's motion improper since it had not been filed within 30 days of judgment and recommended that defendant withdraw the motion and file a section 72 petition. At defendant's request, its motion was denied rather than withdrawn.

Thereafter, on May 27, 1977, defendant filed a section 72 petition to vacate the ex parte judgment. The trial judge found that defendant's petition did not allege facts sufficient to establish a meritorious defense and granted defendant leave to file an amended section 72 petition. This amended petition was filed instanter on July 27, 1977, and was denied after a full hearing on August 22, 1977, on the basis that defendant failed to exercise due diligence in defending the case.

On August 29, 1977, defendant filed a notice of appeal from the April 13, 1977, ex parte judgment and the August 22, 1977, denial of his amended section 72 petition.

I.

A party seeking to vacate a default judgment may proceed under section 50(5) of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 50(5).) Section 50(5) provides that, "The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable." A motion pursuant to section 50(5) must be filed within 30 days of the judgment. Kollath v. Chicago Title & Trust Co. (1975), 62 Ill.2d 8, 338 N.E.2d 188.

In Kollath, plaintiff sought to vacate a dismissal order and reinstate the cause for trial. On the 30th day after the dismissal order had been entered, plaintiff filed a notice of the motion to vacate with the clerk of the circuit court. But plaintiff did not file the motion to vacate within the 30 days. The appellate court held that the filing of the notice of motion satisfied the requirements of section 50(5) in that it brought to the attention of the trial court within 30 days that a motion to reinstate a dismissed case would be argued on a future date. (Kollath v. Chicago Title & Trust Co. (1st Dist. 1974), 24 Ill. App.3d 353, 356, 321 N.E.2d 344.) On appeal, the supreme court rejected this analysis and held that a notice of a motion is not the motion itself; that only the ...


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