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11/03/88 First National Bank of v. Mattoon Federal Savings &

November 3, 1988

JESSE A. DEES, DECEASED, PLAINTIFF-APPELLEE

v.

MATTOON FEDERAL SAVINGS & LOAN ASSOCIATION, DEFENDANT (HOWARD DEES, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

FIRST NATIONAL BANK OF MATTOON, as Ex'r of the Estate of

530 N.E.2d 666, 175 Ill. App. 3d 956, 125 Ill. Dec. 508 1988.IL.1598

Appeal from the Circuit Court of Coles County; the Hon. James F. Watson, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On June 5, 1986, the circuit court of Coles County entered a default judgment on behalf of plaintiff First National Bank of Mattoon against defendant Howard Dees in the amount of $47,076.77. On May 8, 1987, defendant filed a petition for relief from the default judgment. On January 14, 1988, the court granted plaintiff's motion to dismiss said petition. Defendant appeals.

On December 9, 1985, plaintiff, as executor of the Jesse Dees estate, filed a complaint against defendant and Mattoon Federal Savings and Loan Association (Mattoon) to recover money taken from a joint account which it alleged belonged to decedent, defendant's father. The complaint contained three counts directed at each defendant. Mattoon was served summons on December 19, 1985. On January 17, 1986, Mattoon filed a motion to dismiss the counts against it.

On January 31, 1986, defendant, a resident of Texas, was served by summons. The court subsequently granted Mattoon's motion, dismissed the complaint as to Mattoon, and granted 28 days to file amended pleadings. The first-amended complaint was filed on March 27, 1986, and repeated verbatim the counts against defendant contained in the original complaint. Mattoon was eventually dismissed from the case and is not a part of this appeal. On June 5, 1986, plaintiff moved for, and received, a default judgment against defendant. A notice of default was sent to defendant's address but was unclaimed.

On May 8, 1987, defendant filed a petition for relief from the default judgment. On October 19, a motion for change of venue was filed by defendant which was denied. Finally, on November 17, 1987, the second-amended petition for relief from a default judgment was filed. Plaintiff filed a motion to dismiss which was granted on January 14, 1988. This appeal followed.

Defendant initially asserts the court erred in denying the second count for relief contained in his petition, which asked for relief available under section 2-1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). Section 2-1401 provides a comprehensive statutory procedure by which judgments can be challenged more than 30 days after their rendition. To be entitled to relief under this section, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221, 499 N.E.2d 1381, 1386; City National Bank v. Langley (1987), 161 Ill. App. 3d 266, 271, 514 N.E.2d 508, 511.

In the present case, the court granted plaintiff's motion to dismiss the petition. When a motion to dismiss is filed against a petition for relief under section 2 -- 1401, the motion admits all well-pleaded facts and attacks only the legal sufficiency of the petition. (Glenn v. People (1956), 9 Ill. 2d 335, 340-41, 137 N.E.2d 336, 340; Manning v. Meier (1983), 114 Ill. App. 3d 835, 839, 449 N.E.2d 560, 563.) In determining legal sufficiency, the court must accept as true all well-pleaded facts and determine if the petition, viewed in the light most favorable to the petitioner, is sufficient to state a cause of action. (Langley, 161 Ill. App. 3d at 271-72, 514 N.E.2d at 511; Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 449, 434 N.E.2d 476, 480.) The motion to dismiss should not be granted unless it clearly appears no set of facts could ever be proved that would entitle the petitioner to recover. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 280, 433 N.E.2d 253, 256.

A review of defendant's petition and attached affidavits establishes that the original complaint was filed on December 9, 1985, and defendant was served on January 31, 1986, with the resulting default judgment being entered on June 5, 1986. Defendant did not respond to the complaint because he believed co-defendant Mattoon would protect his interest. He formulated this belief because an employee of plaintiff's told him on April 4, 1984, shortly after the death of his father, that Mattoon acted properly in giving defendant the funds from the account. Further, in later February or early March of 1986, defendant had his sister check on the status of the lawsuit. She advised him that her husband, Gary Morgan, checked at the courthouse and discovered the case had been dismissed, and plaintiff had 28 days to refile. Morgan allegedly received this information from the circuit clerk's office and from talking with the Judge in the hall. On March 27, Morgan checked the file and advised defendant that no new complaint had been filed. Defendant thus believed the case was dismissed. Supporting affidavits were submitted by Elinor and Gary Morgan.

As noted earlier, the two elements required in a section 2 -- 1401 motion are a meritorious defense and due diligence on the part of the petitioner. We need not address the question of a meritorious defense since we find defendant failed to ...


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