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Falcon Mfg Co. v. Nationwide Brokers

OPINION FILED MARCH 2, 1984.

FALCON MFG. COMPANY, A/K/A AETOS, INC., PLAINTIFF-APPELLANT,

v.

NATIONWIDE BROKERS, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 13, 1984.

Plaintiff filed an eight-count verified complaint seeking to recover the value of its goods allegedly damaged while being transported from Sheboygan, Wisconsin, to plaintiff's plant in Dallas, Texas, through the negligent acts of the defendants, Nationwide Brokers, Inc., Nationwide Driver Service, Inc. (Drivers), Southwest Petroleum Corporation (Swepco) and defendant Motor Transportation Company.

Although Motor Transportation was served on January 12, 1982, it failed to appear, plead or otherwise respond within 30 days.

In an April 16, 1982, hearing on plaintiff's motion for a default judgment, the trial court found that more than 30 days had elapsed since service of summons was had, and that defendant's failure to appear was a default. It then awarded plaintiff judgment for $21,971.87 and costs.

Following registration of the judgment with the circuit clerk of St. Louis County, Missouri, on November 5, 1982, defendant, on December 23, 1982, filed its petition and affidavits to vacate the default judgment pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), asserting that it had a good defense to plaintiff's claim in that it did not operate or supervise the operation of the semi-tractor at the time of the complained of occurrence. The petition further asserted that control and supervision was either in Swepco or Drivers and that the occurrence was the result of the negligent operation of the vehicle by its driver, who was driving at an excessive speed, and improper loading by others, which caused the load to shift.

Defendant further alleged that the person who swore to the plaintiff's complaint had no personal knowledge of the acts complained of and could not testify in court to those acts. Further, defendant denied that it operated as a common carrier or that it undertook the transportation of goods, and finally, the petition to vacate asserted that defendant's failure to appear and answer resulted from confusion with multiple litigation involving the same occurrence and that upon learning that this was a separate and distinct lawsuit, defendant acted with diligence.

The affidavit of Glenn Hendry, defendant's vice-president, attached to the petition to vacate, asserted that the instant case became confused with another case involving the same occurrence complained of here, and through inadvertence and without negligence on the part of defendant, no appearance of answer was filed.

Plaintiff's motion to strike defendant's petition urging grounds that defendant (1) failed to state facts upon which the court may reasonably infer that petitioner exercised due diligence in presenting a defense to plaintiff's complaint and in presenting said petition, (2) failed to appropriately show matters not of record, and (3) failed to establish a meritorious defense, was denied. The court vacated its judgment, and granted defendant time to answer or plead. Plaintiff appeals.

OPINION

The sole issue in this case is whether the trial court abused its discretion in granting defendant's petition to vacate the default judgment of April 16, 1982, as the petition was insufficient and inadequate as a matter of law, to support relief sought pursuant to section 2-1401 (formerly section 72) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401).

Section 2-1401 provides a procedure for obtaining relief from final orders, judgments and decrees after the passing of 30 days from the date of entry thereof. A motion to vacate a default judgment pursuant to section 2-1401 invokes the equitable powers of the court, as justice and fairness require, so that one may not enforce a default judgment obtained by unfair, unjust or unconscionable circumstances. (Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348.) A court of review may disturb a trial court's decision regarding a section 2-1401 only if it finds that the court abused its discretion. Stallworth v. Thomas (1980), 83 Ill. App.3d 747, 404 N.E.2d 554.

To warrant relief pursuant to section 2-1401, the petitioner must demonstrate (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the trial court in the original action; (3) that through no fault or negligence of his own an error of fact or a valid defense/claim was not raised to the trial court at the time the judgment was entered; and (4) due diligence in filing the petition for relief. Mitchell v. Seidler (1979), 68 Ill. App.3d 478, 482, 386 N.E.2d 284.

For the purposes of this appeal, we need not consider whether defendant Motor Transportation had a meritorious defense. Plaintiff appeals only defendant's lack of due diligence in presenting a defense and in presenting its petition, contending that both defendant's petition and its supporting affidavit ...


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