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08/03/88 Robert Tucker, As Father v. Patrick Mcnulty Et Al.

August 3, 1988

ROBERT TUCKER, AS FATHER AND NEXT FRIEND OF MARK TUCKER, PLAINTIFF-APPELLANT

v.

PATRICK MCNULTY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

527 N.E.2d 953, 173 Ill. App. 3d 722, 123 Ill. Dec. 315 1988.IL.1205

Appeal from the Circuit Court of Cook County; the Hon. Robert Mackey, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Robert Tucker, as father and next friend of Mark Tucker, obtained a default judgment against defendant Patrick McNulty, a Chicago police officer, for failure to file an appearance or plead after the police department was served with his summons. The trial court subsequently granted McNulty's section 2-1401 petition (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) to vacate the default judgment and denied plaintiff's motion for rehearing. On appeal, plaintiff maintains that the trial court abused its discretion in vacating the default judgment because McNulty failed to sufficiently prove due diligence and the presence of a meritorious defense to justify relief under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). Plaintiff further claims that the trial court improperly denied his motion to transfer the section 2-1401 hearing to the court where the default was granted.

Plaintiff filed this suit against defendants McNulty, Darlene Obrzut, and the City of Chicago alleging battery and a violation of constitutional rights. These allegations arise out of an incident on May 4, 1986, when McNulty, an off-duty police officer, was visiting Obrzut, a family friend. In his complaint, plaintiff alleges that McNulty, without cause or provocation, instigated an incident with Mark Tucker, striking him about the face and body, causing him injury.

The sequence of events, as revealed by the pleadings and affidavits, is as follows. On September 11, 1986, a summons was served on the city. On September 15, 1986, a summons directed to McNulty was served on the Chicago police department. On September 16, 1986, McNulty was instructed to report to the office of the Superintendent of Police, where he was handed the summons. McNulty engaged an attorney to determine if he would be represented by the corporation counsel's office. In mid-October, McNulty met with two assistant corporation counsel who informed him that whether or not their office would represent him in this case depended on their determination of whether McNulty was acting in his official capacity at the time of the incident. The attorneys told McNulty that while this determination was being made, they would either prepare a pro se appearance for McNulty or enter their appearance on his behalf before the 30-day period to file an appearance had elapsed.

The corporation counsel filed an appearance on behalf of the city on October 27, 1986. No appearance was filed on behalf of McNulty.

On November 19, 1986, a notice of motion to default McNulty was served on McNulty by mailing it to the Chicago police department. McNulty states by affidavit that he never received this notice. On November 25, 1986, Judge Hoffman entered a default order against McNulty.

On December 12, 1986, Judge Mackey held a prove up and entered a default judgment against McNulty in the amount of $51,600.

According to his affidavit, on December 24, 1986, assistant corporation counsel Evan Canter, mistakenly believing that the motion to default was directed against the city only, filed a motion to vacate the default as to the city. This motion was set to be heard by Judge Hoffman on April 10, 1987.

McNulty received notice of the default judgment and a demand or request for payment on January 26, 1987. He immediately informed the corporation counsel of the default judgment. Canter stated in his affidavit that this was the first he learned that McNulty had been personally defaulted. Canter informed McNulty that the default matter would be taken care of before Judge Hoffman on April 10, 1987.

On March 16, 1987, McNulty discovered for the first time, upon receiving his paycheck, that his wages were being garnished for collection of the judgment. On March 20, 1987, McNulty met with members of the corporation counsel's office and learned that an appearance on his behalf had never been filed. McNulty retained counsel that same day and filed a section 2 -- 1401 petition to vacate the default judgment before Judge Mackey on March 31, 1987. The petition contained supporting affidavits from McNulty and Canter. Plaintiff filed an answer to the section 2 -- 1401 petition with several supporting affidavits which addressed McNulty's meritorious defense. Plaintiff also filed a motion to transfer the hearing on the petition to Judge Hoffman. All motions and the petition were set for hearing ...


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