APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
529 N.E.2d 1176, 175 Ill. App. 3d 367, 125 Ill. Dec. 100 1988.IL.1527
Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
On April 6, 1984, plaintiff, an employee of Illinois Power Company, filed suit against defendant for injuries caused by defendant's dog while plaintiff was reading defendant's power meter. The suit was filed under section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366). A summons was served on defendant's daughter at defendant's home on April 9, 1984. No answer or appearance was ever filed by the defendant.
On August 1, 1986, the trial court, on its own motion, dismissed the plaintiff's cause for want of prosecution. Both parties agreed that they received a notice of dismissal from the court.
On September 2, 1986, plaintiff filed a motion to reinstate and allot for trial, asking for a default judgment and a trial on the issues of damages. A certificate of service in the record indicates that plaintiff sent a copy of the motion to defendant at his home address. A notice of the hearing setting was also sent to defendant, and a certificate of service was filed with the court. Plaintiff's attorney filed an affidavit that neither of these notices was returned to his office by the post office. Defendant and his wife denied having received either of the notices.
On September 26, 1986, plaintiff's motion to reinstate was heard and granted. After reviewing the proof of service of the summons, and finding there was no answer or other response from the defendant, the trial court entered a default judgment. On November 17, 1986, plaintiff filed another certificate of service of the notice of the prove up of damages. Defendant acknowledges having received this but did not appear. After hearing the evidence presented by plaintiff, the jury awarded him $14,000 on December 18, 1986.
On January 20, 1987, defendant filed a motion to vacate the judgment. After considering various additional motions of the parties, the trial court denied the motion to vacate on February 18, 1988.
On March 15, 1988, defendant filed a notice of appeal.
Both parties on appeal have represented to this court that the trial court based its decision to deny the defendant's motion to vacate on section 2-1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). Plaintiff argues that while defendant's initial motion was based on section 2-1301 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-1301), his memorandum argued only for section 2-1401 relief and, so, defendant has waived any section 2-1301 claim on appeal. Plaintiff does so in order to avail himself of the stricter standards of section 2-1401 in the light of the trial court's finding that defendant had shown no due diligence and meritorious defense.
Defendant, on the other hand, points to exactly this finding as indicative that the court improperly considered his motion under the higher standards of section 2 -- 1401, when it should have employed section 2 -- 1301. He argues that his motion fell within the limitations of this section and that his case would support vacating the judgment under the lower standards of section 2 -- 1301.
Both sections of the Code are intended to afford parties with post-judgment relief. Because of the statutory limitations imposed, their remedies are not elective but mutually exclusive. Section 2-1301 requires a party to file his motion for relief within 30 days of final judgment. Parties seeking section 2-1401 relief can do so only 30 days after final judgment, but must file within a two-year period. In this case, final judgment came on December 18, 1986. Defendant's motion was filed on January 20, 1987. Since January 18 and 19 were a Sunday and a holiday, respectively, the filing came within 30 days for the ...