Appeal from the Circuit Court of Champaign County; the Hon.
Creed D. Tucker, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Plaintiff filed a two-count complaint to recover damages for personal injury. The cause was later dismissed by the trial court sua sponte. Plaintiff filed a petition for relief from the judgment pursuant to the provisions of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2-1401 (for purposes of consistency all further references to section 72 will be made instead to section 2-1401, regardless of the date of disposition)). As the result of plaintiff's petition, the trial court allowed reinstatement of the cause. Defendant appeals from the trial court's decision.
Plaintiff, as next friend for her daughter, Cheryl Manning, brought an action to recover for injuries Cheryl suffered in a motorbike-truck accident. Defendant answered, denying plaintiff's allegations. Defendant filed a notice of discovery deposition on July 7, 1978. Defendant served plaintiff with interrogatories on February 11, 1980.
The next item appearing in the case record is a letter from Judge Tucker to all attorneys in the case, dismissing the cause for want of prosecution and giving plaintiff 30 days to move to reinstate. The letter is dated February 15, 1980. The docket entry dismissing the case for want of prosecution was not made until December 31, 1980.
On June 3, 1982, plaintiff filed a petition under section 2-1401 seeking to have the cause reinstated. In his accompanying affidavit, plaintiff's attorney recited the procedural history of the case. Depositions had been taken pursuant to the notice mentioned above, but had been lost by the stenographic firm involved in the case. On February 25, 1981, plaintiff's attorney wrote to defendant's attorney regarding a retaking of the deposition. Defendant's attorney replied, on February 27, 1981, in a hand-written note at the bottom of plaintiff's original letter. Defendant's attorney indicated he would be available to retake the deposition at any time on 30 days' notice.
Plaintiff's counsel further stated that our supreme court's decision in Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886, caused counsel for the parties to discuss the case twice during the summer of 1981. Plaintiff's counsel then sent another letter to defendant's attorney on February 15, 1982. Defendant's attorney, in a letter dated February 16, 1982, replied that his "file was closed" because Judge Tucker had dismissed the case on February 15, 1980.
Defendant moved to dismiss plaintiff's section 2-1401 petition on the grounds that it was not filed within two years of the dismissal for want of prosecution and that plaintiff's petition fails to state a cause of action. A hearing was held on September 21, 1982, and the trial court took the motion under advisement. On September 29, 1982, Judge Tucker denied the motion to dismiss and made the following docket entry:
"Now on this day, ruling on motion to dismiss petition under section [2-1401] heretofore taken under advisement. Motion denied on the ground that the docket sheet reflects that the Court has inadvertently contributed to a confused state of the record, by addressing a letter to plaintiff's attorney, indicating the case had been dismissed for want of prosecution and dated February 15, 1980, while the docket sheet reflects that the dismissal was made on December 31, 1980. Based on that finding, no further action required with regard to section 72 [now section 2-1401]. Cause reinstated for trial by jury."
Defendant raises two issues on appeal: (1) Did plaintiff's section 2-1401 petition state sufficient facts to justify the reinstatement of the cause of action by the trial court; and (2) did the trial court err by failing to allow defendant to file a responsive pleading after the denial of defendant's motion to dismiss plaintiff's section 2-1401 petition.
• 1 Section 2-1401(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401(a), formerly Ill. Rev. Stat. 1979, ch. 110, par. 72(1)) provides for relief from final judgments after 30 days from entry of the judgment. The purpose of section 2-1401 is to bring facts not of record to the attention of the trial court which, if known by the trial court at the time judgment was entered, would have prevented its rendition. (Davis v. Chicago Transit Authority (1980), 82 Ill. App.3d 987, 403 N.E.2d 615; American Reserve Corp. v. Holland (1980), 80 Ill. App.3d 638, 400 N.E.2d 102.) The petition invokes the equitable powers of the court as justice and fairness require and should be considered in the light of equitable principles. Hiram Walker Distributing Co. v. Williams (1981), 99 Ill. App.3d 878, 426 N.E.2d 8; Czekaj v. Czekaj (1978), 66 Ill. App.3d 484, 384 N.E.2d 63; Ambassador Insurance Co. v. Wilson (1978), 65 Ill. App.3d 418, 382 N.E.2d 605.
• 2 Generally, in order to obtain relief under section 2-1401, petitioner must show that he has a meritorious defense and that he has exercised due diligence. (Halleck v. Trumfio (1980), 85 Ill. App.3d 1051, 407 N.E.2d 867.) Relief will not be granted pursuant to section 2-1401 where the moving party or his counsel has been negligent. (Canton v. Chorbajian (1980), 88 Ill. App.3d 1015, 410 N.E.2d 1166; Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App.3d 981, 400 N.E.2d 724, rev'd on other grounds (1981), 83 Ill.2d 559, 416 N.E.2d 252.) Recent cases indicate that these requirements need not always be applied in a strict manner; when justice and fairness require, a judgment may be vacated even though the requirement of due diligence has not been satisfied. Canton; Lutz v. Lutz (1977), 55 Ill. App.3d 967, 371 N.E.2d 348.
The applicability of section 2-1401 to judgments of dismissal for want of prosecution entered either ex parte or on the trial court's own motion has been the subject of several appellate court cases. In Electrical Wholesalers, Inc. v. Silverstein (1977), 47 Ill. App.3d 689, 365 N.E.2d 375, plaintiff brought suit against defendant for sums due under a contract. The case was set for trial on October 15, 1973, in a specified courtroom. On October 12, 1973, plaintiff's attorney asked the clerk assigned to that courtroom about the status of the case. The clerk informed plaintiff's attorney that the case would be transferred to another courtroom, as provided by a general order of the circuit court of Cook County.
The case was dismissed for want of prosecution in the first courtroom on October 15, 1973. Plaintiff did not receive notice of this dismissal. Periodically, plaintiff's attorney would check the calendar for the second courtroom. Finally, a search for the court file was instituted and the file was discovered in March of 1974. No entry was found in the file dismissing the case. Plaintiff's attorney noticed a deposition in April 1974 and was informed by defendant's attorney that the case had been dismissed on October 15, 1973.
Plaintiff filed a section 2-1401 (formerly section 72) petition along with an affidavit. The trial court vacated the dismissal and defendant filed an appeal. The appellate court upheld the vacation of the dismissal. The court held that the section 2-1401 relief was proper when a party had been defaulted or had his case dismissed for want of prosecution without notice to him. The court found that the record supported the contention that plaintiff had diligently pursued its rights during the proceedings. See also Prendergast v. ...