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Geller v. General Motors Corp.

OPINION FILED AUGUST 22, 1980.

BENJAMIN GELLER, INDIV. AND D/B/A BEN GELLER CHEVROLET, INC., PLAINTIFF-APPELLEE,

v.

GENERAL MOTORS CORPORATION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND S. SARNOW, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant appeals from the granting of plaintiff's section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) to reinstate his cause of action. Defendant contends that the petition was insufficient as a matter of law and that the earlier order dismissing plaintiff's cause was correct. We affirm.

Plaintiff brought suit against defendant on January 26, 1976, the merits of which are not at issue here. Certain discovery was undertaken and the case eventually appeared on the call of non-jury cases by the Assignment Section of the Law Division on January 10, 1979, at 2 p.m. *fn1 Plaintiff failed to appear, and the case was dismissed for want of prosecution. The court call appeared in the Chicago Daily Law Bulletin issue of January 9, 1979, and the dismissal in the January 12, 1979, issue. A postcard notice of dismissal for want of prosecution sent to plaintiff's attorney by the court clerk was returned undelivered because of the attorney's change of office address, which did not appear of record.

On February 16, 1979, plaintiff filed a written motion to reinstate the case pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50(5)) but withdrew it when defendant objected that it was untimely. Plaintiff then filed a section 72 petition, which was denied with leave to file an amended petition.

In his amended section 72 petition, plaintiff alleged that (1) his failure to appear and the resulting dismissal was not caused by negligence of counsel but by mere inadvertence; (2) after not seeing the case on the trial call, plaintiff's counsel made a routine inspection of his litigation files and determined that the case had been dismissed; (3) plaintiff's counsel never received notice that the case had been dismissed; (4) there had been no lack of due diligence in pursuing the matter or in moving to vacate the dismissal and that any tardiness was due to excusable mistake; and (5) plaintiff has a meritorious cause of action. In an accompanying affidavit, plaintiff's attorney stated that he was out of town for personal reasons on January 10, 1979; that he was aware that the matter was to appear on the trial call at about that date and he had been following it; that he missed the case through inadvertence and not negligence; that he learned of the dismissal on about February 5, 1979, through a check of his files which was prompted by his concern over not seeing the case appear on the trial call; that severe family problems and lease problems were further reasons for his missing the call; that severely inclement weather in January 1979 prevented him from reviewing his files within term time; that he had been actively preparing for trial in this case; that in his opinion plaintiff has a meritorious claim; and that a refiling would prejudice plaintiff because of his advanced age.

Defendant filed an answer to the amended petition supported by affidavits of its attorneys which, inter alia, admitted that the case was dismissed for want of prosecution but denied that the dismissal was for failure of counsel to appear and alleged that the case was dismissed after the court was advised by counsel for defendant that plaintiff had taken no action in the case for over 1 1/2 years, and also that plaintiff had not been diligent in prosecuting the action and in presenting the petition.

The trial court granted the amended petition on April 18, 1979, vacated the January 10 order of dismissal, and reinstated plaintiff's action. Defendant appeals from that order.

OPINION

• 1 Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) provides a procedure to vacate final orders, judgments and decrees after 30 days from their entry. The following requirements set out in Mitchell v. Seidler (1979), 68 Ill. App.3d 478, 482, 386 N.E.2d 284, 286, must be shown by a petitioner before relief is granted:

"(1) the existence of a meritorious defense of claim [citations];

(2) due diligence in presenting this defense or claim in the original action [citation];

(3) that through no fault or negligence of his own an error of fact or a valid defense or claim was not made to appear to the trial court at the time the challenged judgment, order or decree was entered [citation]; and

(4) due diligence in filing the petition for section 72 relief. [Citations.]

The petitioner must set forth specific factual allegations supporting each of the above elements [citations] and must prove his right to the relief sought by a ...


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