APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 27, 1981.
The defendants, Eugene W. and Henrietta P. Brychek, appeal from a summary judgment of foreclosure and sale entered in the circuit court of Cook County against them and in favor of the plaintiff, M. Loeb Corporation. On appeal they contend that: (1) the trial court erred in entering summary judgment because their pleadings and affidavits contradicted the plaintiff's allegations; (2) the trial court erred in striking their responsive pleadings and in entering summary judgment against them without first having ordered discovery; (3) the trial court's order staying discovery was null and void because it modified a prior discovery order without notice, motion or affidavit by the plaintiff; (4) the trial court abused its discretion in denying their motions for change of venue; and (5) the trial court abused its discretion in awarding $10,000 in attorneys' fees and costs in favor of the plaintiff under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41).
The plaintiff brought its mortgage foreclosure action against the defendants on September 26, 1977. The defendants responded by filing a motion to strike and dismiss the complaint, a comprehensive request for production of documents, and a notice of deposition. The plaintiff also filed discovery requests. The trial court denied the defendants' motion to strike and dismiss the complaint and ordered that the plaintiff answer discovery within 28 days from the filing of an answer by the defendants. The defendants filed an answer, affirmative defense and counterclaims. The plaintiff did not comply with discovery within 28 days of the filing of the responsive pleadings. Rather, the plaintiff filed a motion attacking the legal and factual sufficiency of the responsive pleadings. The issue of the sufficiency of the pleadings was continued for hearing.
On April 12, 1978, the trial court struck the defendants' pleadings as being legally and factually insufficient and stayed discovery. The April order recites that the parties were present by their counsel at the hearing. The transcript of the hearing is not a part of the record on appeal.
The defendants made at least three attempts over an 18-month period to state legally and factually sufficient affirmative defenses and counterclaims. From the pleadings it appears that if there was consideration for the execution of the note and mortgage it was that they were executed as security for a $40,000 debt owed by the defendants to the plaintiff. On October 18, 1978, the trial court struck and dismissed with prejudice the defendants' affirmative defenses and counterclaims and the affirmative allegations in their answer. Only the defendants' general denial was left standing.
Thereafter the defendants filed three separate petitions for change of venue, a motion to dismiss the plaintiff's complaint, motions for sanctions and for attorneys' fees under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41), a motion to file affirmative defenses and two notices of appeal each of which was subsequently dismissed. Memoranda of law were submitted by the parties and hearings were held on these motions and on various motions filed by the plaintiff.
Following hearing, the trial court granted a petition which had been filed by the plaintiff for attorneys' fees and costs under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41). On August 8, 1979, after considering affidavits and conducting a hearing on the issue of reasonable attorneys' fees, the trial court ordered the defendants to pay $10,000 to the plaintiff under section 41.
On December 17, 1979, Loeb filed a motion for summary judgment of foreclosure and sale. In its motion, Loeb requested that the decree set forth that attorneys' fees were, in addition to being recoverable under section 41, separately and independently recoverable under the terms of the mortgage and note.
In support of its motion for summary judgment the plaintiff established that the parties executed a mortgage and note in 1967. Its accountant's affidavit established the amount due under the note and mortgage. The defendants in opposition answered the motion and filed affidavits which set forth that the defendants received no consideration or anything of value for the execution of the note and mortgage.
On April 8, 1980, after considering the pleadings and affidavits filed by the parties, the trial court entered summary judgment of foreclosure and sale. The judgment sets forth that the $10,000 previously awarded as attorneys' fees and costs was, in addition to being recoverable under section 41 of the Civil Practice Act, separately recoverable as reasonable attorneys' fees and costs under the terms of the parties' mortgage contract. The defendants make no contention on appeal concerning the attorneys' fees and costs provision of the judgment of foreclosure.
The defendants first contend that the trial court erred in entering summary judgment against them because their pleadings and affidavits contradicted the plaintiff's allegations. Specifically, they alleged to have controverted the plaintiff's allegations concerning consideration.
• 1-3 Consideration for a promissory note is rebuttably presumed and requires no proof other than the note itself. (In re Estate of Wetmore (1976), 36 Ill. App.3d 96, 343 N.E.2d 224; Steiner v. Rig-A-Jig Toy Co. (1956), 10 Ill. App.2d 410, 135 N.E.2d 166.) Failure or want of consideration is an affirmative defense (Ill. Rev. Stat. 1979, ch. 110, par. 43(4)), and as such must be specially pleaded (Ballard v. Trainor (1936), 285 Ill. App. 509, 2 N.E.2d 375). A defense not properly pleaded is deemed waived although it may appear to be within the evidence. Economy Truck Sales & Service, Inc. v. Granger (1965), 61 Ill. App.2d 111, 209 N.E.2d 1.
Here, the defendants' attempts to plead affirmative defenses and counterclaims had been stricken and dismissed with prejudice and their general denial was the only responsive pleading standing at the time of the entry of summary judgment. Therefore, the defendants' allegation that they controverted the presumption of consideration does not affect the validity of the summary decree of foreclosure, since failure ...