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08/31/89 James Campbell Et Al., As v. Colin F. White

August 31, 1989

J. CAMPBELL, DECEASED, PLAINTIFFS-APPELLEES

v.

COLIN F. WHITE, DEFENDANT-APPELLANT



Before proceeding to the merits of the appeal, this court must consider a motion taken with the case. Plaintiffs moved to strike two portions of defendant's brief. The first portion is a reference to a stipulation filed in the Federal case concerning the circumstances of decedent's death. The stipulation itself has not been made part of the record on appeal. Defendant's brief contains a footnote suggesting the court take judicial notice of the stipulation. The record does not indicate the trial court was aware of this stipulation or took judicial notice of it, although the trial court was advised of and did refer to the Federal litigation in general. Furthermore, although the stipulation itself was not before the trial court, in arguing the existence of a meritorious defense to the Judge, defendant's attorney does recite the facts essentially set forth in the stipulation without objection from plaintiffs. In addition, the complaint alleges defendant was an Illinois State Police officer operating a State police car when he struck the decedent and in so operating the police car was negligent (count I) or guilty of wilful and wanton misconduct (count II). From the allegations of negligence and wilful and wanton misconduct, the court understands it is alleged defendant operated the police car in pursuit of a possible traffic law violator without turning on the oscillating lights and traveling at a high rate of speed, possibly in excess of 100 miles per hour, on an interstate highway during hours of darkness.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

JAMES CAMPBELL et al., as Coadm'rs for the Estate of Ronald

543 N.E.2d 607, 187 Ill. App. 3d 492, 135 Ill. Dec. 224 1989.IL.1362

Appeal from the Circuit Court of Champaign County; the Hon. Harry E. Clem, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This is an appeal by defendant Colin F. White from an order of the circuit court of Champaign County denying defendant's motion to vacate a default judgment previously granted in favor of plaintiffs James and Lois Campbell, coadministrators of the estate of Ronald J. Campbell, deceased. Plaintiffs filed suit against defendant on April 10, 1987. The complaint sought damages for the wrongful death of plaintiffs' son allegedly resulting from a collision involving a police car operated by defendant. It is alleged that, at all times relevant to the complaint, defendant is an Illinois State Police officer. The complaint is framed in two counts, negligence and wilful and wanton misconduct. Defendant was personally served with a copy of the complaint on April 21, 1987.

No answer or appearance for defendant being filed in the circuit court, plaintiffs filed a motion requesting an order of default and asking the court to set a date for prove up of damages. On July 21, 1987, plaintiffs' motion for default as to liability was allowed.

The prove up was conducted before a jury on December 10, 1987. As a result of the prove up, the jury assessed damages against defendant as follows: $125,000 for Lois Campbell, $125,000 for James Campbell, $50,000 for Robin Campbell, and $10,000 for decedent's estate. After excusing the jurors, the trial court limited the damages award to the estate to $4,958.10 and entered judgments against defendant in the total amount of $304,958.10 plus court costs.

On December 14, 1987, plaintiffs filed a notice of entry of judgment in which it was certified that a copy of the notice was mailed to defendant and attorney Joseph S. Miller, special assistant Attorney General, on December 11, 1987. On January 4, 1988, defendant, by Miller, filed a motion to vacate the default judgment. The motion recited the default occurred without "lack of diligence, fault or neglect on part of defendant and failure to answer complaint was the result of excusable neglect on part of Defendant's Attorney." The motion further recites defendant has a meritorious defense in that defendant was without fault under the circumstances surrounding the alleged occurrence. In addition, defendant filed an answer to the complaint on January 4, 1988. On January 12, 1988, plaintiffs gave notice of the discovery depositions of defendant and Miller which notice was amended on January 21, 1988, to commence said depositions on March 4, 1988. Thereafter, on February 24, 1988, Regina Haasis and Scott D. Spooner, assistant Attorney Generals, entered their appearances.

The discovery depositions were conducted on March 4, 1988, and copies of the transcripts and exhibits thereto were filed in the circuit court. In support of their motion to vacate, affidavits of defendant and Miller were also filed., Defendant's affidavit states as follows:

"1. That I am of legal age and would be competent to testify to the matters and things set forth herein if called as a witness in this cause.

2. That I am currently employed by the Illinois State Police as a State Trooper and was so-employed at all times referenced in the instant affidavit.

3. That I am the defendant in the case at bar, as well as in a related proceeding currently pending before the United States District Court for the Central District of Illinois (Danville Division) which is known and referred to as Campbell v. White, No. 86 -- 2161.

4. That I received a letter from Joseph S. Miller, Special Assistant Attorney General, dated September 23, 1986 which informed me that he had been assigned to defend me in the aforementioned civil action in federal court.

5. That other than meeting with Mr. Miller for approximately five (5) minutes prior to my deposition on December 3, 1986 (in the federal case) I have never had an opportunity to discuss this case with my appointed counsel.

6. That on April 21, 1987 I was served with a summons and complaint in the case at bar.

7. That after I was served with process, I called Attorney Miller at his law office in Springfield and was advised that I should send him the aforesaid summons and complaint.

8. That between April 21, 1987, and March 4, 1988 (the date on which I was once again deposed by counsel for plaintiffs herein) I was never able to speak with Attorney Miller regarding this case, despite repeated attempts to do so.

9. That the only correspondence which I received from Attorney Miller between April 21, 1987 and March 4, 1988 was a letter with attached interrogatories in the aforementioned federal proceeding which was sent to me on September 16, 1987.

10. That upon receipt of the aforesaid interrogatories I attempted to call Attorney Miller between five (5) and ten (10) times during September, 1987.

11. That the only person I was ever able to speak with was a secretary employed at Attorney Miller's law office.

12. That I was never advised that a default was entered against me on July 21, 1987.

13. That I was never advised that a jury verdict in the amount of $304,928.57 [ sic ] was entered ...


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