Appeal from the Circuit Court of Will County; the Hon. Louis
K. Fontenot, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Plaintiff, Georgia Satcher, brought this small claims action in the Will County Circuit Court against the defendant, Inland Real Estate Corporation, seeking to recover $2,000 plus costs in damages for the defendant's alleged negligence in maintaining and controlling the plaintiff's apartment. According to the complaint and plaintiff's affidavit, the defendant owned the apartment building where plaintiff lived. Plaintiff returned from a vacation in November of 1981 to discover that her apartment had been broken into and $2,000 worth of items were missing. Plaintiff's complaint was filed on June 14, 1982. It was served on defendant's agent in Oak Brook, Du Page County, on July 2. The cause was set for hearing five days later, on July 7.
The defendant failed to appear, and an order of default was entered. On July 21, proof of plaintiff's damages was heard and judgment of default was entered in the amount of $2,000 plus costs. The record does not indicate that notice of the hearing on damages was sent to the defendant. On August 6, 1982, defendant moved to vacate the default judgment and alleged:
"1. Plaintiff will not be prejudiced by the granting of [the] motion;
2. Defendant has a meritorious defense to Plaintiff's claim; [and]
3. Upon receipt of summons, Defendant * * * forwarded the court papers to its [insurer]. The [insurer] denied coverage, and therefore, did not provide defense for [the] action, resulting in the default."
On September 8, 1982, the date set for a hearing on the motion, the plaintiff filed an "answer," denying each of the allegations. The "answer" stated, inter alia, that on June 28, 1982, the defendant's insurer informed the defendant's agent that the insurance policy did not cover incidents of the type alleged in plaintiff's complaint. After entertaining arguments of counsel for both sides, the court denied the motion to vacate and entered its findings as follows:
"The court finds that Defendant did not set forth a meritorious defense in its Petition, and based upon Paragraph 3 of Plaintiff's answer finds that Plaintiff's [sic] allegations in its motion regarding denial of insurance coverage were not meritorious and the court denies the motion to vacate the judgment."
Defendant appeals, raising for our consideration a single issue — whether the trial court committed reversible error by applying an erroneous standard in ruling on the motion to vacate. Our review of applicable case law persuades us that the trial court erred in denying defendant's motion.
The seminal case in recent decisions interpreting section 2-1301(e) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1301(e)) is Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App.2d 102, 167 N.E.2d 799. There the court stated:
"The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant's delay in responding to the court's command actually jeopardizes plaintiff's basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.
The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits." (Emphasis added.) 26 Ill. App.2d 102, 108-09, 167 N.E.2d 799, 803.
The real question on appeal is no longer whether the trial court abused its discretion in ruling on the motion to vacate, but whether its ruling serves the ends of justice. Lettvin v. Suson (1978), 62 Ill. App.3d 215, 379 N.E.2d 49.
The record on appeal consists of the common law record, without transcripts of hearings. Our review of the trial court's order convinces us that the court erroneously accorded too much weight to its finding that the Du Page County defendant's asserted excuse for failing to appear was not justified. This factor alone does not dictate denial of the motion to vacate. Furthermore, while obviously it would have been preferable to us, for purposes of review, had the defendant set forth a basis for its bare allegation of a meritorious defense, we do not believe that the motion is fatally defective in its failure to do so. Whether a meritorious defense existed or not was a proper subject of inquiry at the hearing on defendant's motion. Of far lesser import was the question of whether or not the form of defendant's motion was technically complete. (See Knight v. Kenilworth Insurance Co. (1971), 2 Ill. App.3d 493, 275 N.E.2d 470 (defendant's motion to vacate default judgment alleged a meritorious defense and appellate court, without addressing such defense, determined justice would be served by allowing defendant his day in court).) But, most importantly, it appears on the face of the trial court's order that the court did not find that allowing the motion would work any injustice on this plaintiff.
Hardship or prejudice to the plaintiff, if any could be found, would weigh in favor of affirming the trial court's denial of the motion to vacate on grounds that substantial justice had been served. (Widicus.) The record indicates that the plaintiff appeared, at most, only three times by her attorney prior to the filing of defendant's motion to vacate. There is no indication that the plaintiff herself ever made an appearance. Although plaintiff in her "answer" generally denied that she would not be prejudiced by ...