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09/29/88 John Kaput, v. William L. Hoey

September 29, 1988





530 N.E.2d 230, 124 Ill. 2d 370, 125 Ill. Dec. 202 1988.IL.1480

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Louis J. Giliberto, Judge, presiding.


JUSTICE MILLER delivered the opinion of the court.


The plaintiff, John Kaput, brought an action in the circuit court of Cook County against the defendant, William L. Hoey, seeking recovery for injuries the plaintiff sustained in an accident on the defendant's property. The defendant entered his appearance in the matter but failed to answer or otherwise respond to the complaint, and the plaintiff eventually obtained a default judgment and an award of $29,500 in damages on his claim. The defendant did not learn of the adverse judgment until after supplementary proceedings were initiated, and he then filed a petition under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401) in the circuit court of Cook County asking that the damages award and default judgment be vacated. Following a hearing, the circuit Judge dismissed the defendant's petition. The appellate court, with one Justice Dissenting, affirmed that decision. (159 Ill. App. 3d 800.) We allowed the defendant's petition for leave to appeal (107 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The plaintiff filed his personal injury action against the defendant on August 12, 1980. The complaint alleged that the plaintiff was injured on February 1, 1980, when he slipped and fell on a patch of ice outside an apartment building owned by the defendant. According to the complaint, the accident occurred on a common walkway of the premises as the plaintiff, a tenant of the building, was leaving his apartment. The plaintiff attributed the accumulation of ice to a defective downspout on the property.

A summons was issued on August 12, 1980, and it was left with the defendant's wife at their home in Glenview four days later, on August 16. The defendant entered his pro se appearance on September 8, 1980, but he did not answer the complaint or otherwise file any responsive pleadings to the action. More than two years later, on December 6, 1982, the plaintiff moved for entry of a default judgment, and the motion was granted on January 28, 1983. On May 14, 1984, orders were entered both scheduling the case for a prove up of damages and dismissing the action for want of prosecution; the dismissal order was vacated on June 1, 1984, with costs waived by the court. A prove up in the case was held on June 12, 1984, and the court entered judgment of $29,500, plus costs, in favor of the plaintiff. On June 11, 1985, a memorandum of judgment was filed. The following month, the plaintiff initiated supplementary proceedings, and abode service of a second alias citation to discover assets was effected at the defendant's home, in Glenview, on August 26, 1985. Counsel entered an appearance on behalf of the defendant on October 7, 1985, and the defendant filed the instant section 2 -- 1401 petition on November 6, 1985.

In the petition, the defendant complained that he did not receive notice of any of the proceedings that took place in the five-year period between his entry of an appearance in the case and the service of the second alias citation to discover assets. The defendant also asserted the existence of a meritorious defense to the plaintiff's action. According to the defendant, he had information to the effect that the plaintiff's fall occurred on a public sidewalk, that he was intoxicated at the time, and he was injured less seriously than he claimed. In an accompanying affidavit, the defendant attested to his belief that the defense was meritorious and to his lack of receipt of notice of the proceedings in the case.

In a response to the section 2 -- 1401 petition, the plaintiff disputed the defendant's claim that he was not served with notice of the default motion. The plaintiff also asserted that no notice had been required of any of the activity occurring after the default order was entered in January 1983 and attacked the sufficiency of the defendant's affidavit, contending that it was merely conclusory.

A hearing was conducted on the defendant's section 2 -- 1401 petition on March 27, 1986, and the circuit Judge permitted the defendant to testify at the hearing. The defendant asserted that in the period from 1980 to 1985 he did not receive any communications or notices regarding the plaintiff's action other than the summons and the second alias citation to discover assets. The defendant explained that, following his receipt of the summons, he went to the circuit clerk's office to enter his appearance. According to the defendant, "I asked them what to do, and they said they would probably follow up on it and I would hear from them." The defendant testified that the next notice he received concerning the plaintiff's action came in August or September 1985, when he was served with a citation to discover assets. It was at that time that the defendant learned of the $29,500 judgment against him, and he then obtained counsel.

The defendant also explained that during the pendency of the proceedings he was absent from the family's Glenview residence for three separate periods -- from sometime before Christmas 1980 until February 1981, in July or August 1982, and in late summer 1984. The defendant attributed his absences to marital difficulties, and he said that on those occasions he lived in Melrose Park at his brother's home. The defendant remained married to his wife, however, and at the time of the hearing he was once more residing in the marital residence. The defendant acknowledged that even while he was staying with his brother he continued to visit the Glenview home to see his children and to give his wife money so that she could pay bills. The defendant testified that his wife never mentioned receiving any mail regarding the plaintiff's suit.

At the Conclusion of the hearing, the circuit Judge dismissed the defendant's section 2 -- 1401 petition. Rejecting the defendant's claim of a meritorious defense to the underlying action, the circuit Judge believed that neither the petition nor the defendant's testimony provided any specific information that would establish a defense. The only evidence that had been offered by counsel on that point was the defendant's reference to a conversation with another tenant of the building, and the circuit Judge had sustained the plaintiff's hearsay objection to the testimony. Also, the circuit Judge doubted whether the defendant's sometimes-troubled marital relationship would have prevented the defendant from receiving notice of the progress of the plaintiff's case; the circuit Judge mentioned that during the periods when the defendant was living in Melrose Park he would visit the marital home in Glenview, seeing his children and helping with the family finances. In addition, the circuit Judge noted that in 1981 the defendant had failed to claim from the postal authorities certain certified letters about the case, which plaintiff's counsel displayed to the court during the hearing, and the Judge concluded that the defendant had frustrated efforts to notify him about the case. Moreover, the circuit Judge ruled that the defendant had not been entitled to notice of any of the proceedings in the case following entry of the default order in 1983. Accordingly, the circuit Judge refused to vacate the default judgment.

The appellate court affirmed the circuit Judge's dismissal of the section 2 -- 1401 petition. The court concluded that the plaintiff had provided notice of the motion for entry of the default and that notice of the proceedings after entry of the default had not been necessary. The appellate court also rejected the defendant's contention that the statement made to him by an employee of the circuit clerk, at the time he entered his pro se appearance, excused his subsequent neglect of the matter. The appellate court also rejected the contention that relief under section 2 -- 1401 was warranted because the plaintiff had delayed in obtaining the default order, in scheduling the prove up of damages, and in instituting the citation proceedings. Finally, the appellate court did not believe that the defendant had demonstrated the existence of a meritorious defense to the underlying action, noting the same ...

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