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12/29/89 Jose Gomez, v. Pizza Et Al.

December 29, 1989

JOSE GOMEZ, PLAINTIFF-APPELLEE

v.

VITINO'S PIZZA ET AL., DEFENDANTS-APPELLANTS (JAMES PUGH, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

549 N.E.2d 896, 192 Ill. App. 3d 1046, 140 Ill. Dec. 245 1989.IL.2052

Appeal from the Circuit Court of Cook County; the Hon. Paul F. Elward, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and COCCIA,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiff, Jose Gomez, obtained a default judgment against defendants, Vitino's Pizza and James Pugh. Prior to satisfaction of the judgment, defendant Vito DeFrancesco was added as a party and judgment was entered against him. Defendants Vitino's Pizza and DeFrancesco now appeal. We address the issue of whether a person can be named as a party defendant under section 6 of "An Act in relation to the use of an assumed name in the conduct or transaction of business in this State" (Ill. Rev. Stat. 1985, ch. 96, par. 8a) (Assumed Business Name Act or Act) when plaintiff failed to sue unknown owners as allowed under the Act. For the following reasons, we reverse and remand.

Plaintiff filed a complaint for negligence against defendants Vitino's Pizza and Pugh seeking damages for personal injuries which resulted from a car accident that occurred on December 27, 1980. Plaintiff alleged that Pugh was driving a car as an "agent, servant and employee" of Vitino's Pizza when it struck plaintiff as he was walking across the street.

Both defendants were served with summons and complaint. On May 7, 1981, pursuant to plaintiff's motion, Pugh was found in default for his failure to file an appearance.

DeFrancesco, appearing pro se on behalf of Vitino's Pizza, prepared a motion to dismiss which was denied. Subsequently, an attorney filed an appearance for Vitino's Pizza. Vitino's Pizza filed an answer denying the allegations of the complaint which was verified by DeFrancesco. Certain discovery was conducted, and DeFrancesco was deposed. During the course of litigation, Vitino's Pizza was periodically represented by several different attorneys or by DeFrancesco appearing pro se.

On December 20, 1984, a default judgment was entered against Vitino's Pizza for failure to appear for trial. After a prove up on January 3, 1985, judgment was entered against Vitino's Pizza and Pugh for $150,000.

On January 17, 1985, a motion to vacate default was filed on behalf of "Vito DeFrancesco d/b/a Vitino's Pizza." The trial court denied the motion because DeFrancesco was not a party, and no judgment was entered against him individually. On February 8, 1985, Vitino's Pizza filed a motion to vacate but the trial court denied it for lack of jurisdiction because it was filed more than 30 days after judgment. On April 30, 1985, Vitino's Pizza filed another motion to vacate, this time pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). That motion was also denied. Vitino's Pizza did not file a notice of appeal within 30 days from entry of any of those orders.

On June 22, 1988, plaintiff filed a motion to add DeFrancesco as a defendant pursuant to section 6 of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 8a). The motion argued that in violation of the Act, Vitino's Pizza was not registered as an assumed name and that during litigation plaintiff learned DeFrancesco owned Vitino's Pizza. Relying on section 6, plaintiff sought to amend the judgment against Vitino's Pizza and Pugh, which had not yet been satisfied, to include DeFrancesco. DeFrancesco filed a special appearance and a response to the motion. On September 12, 1988, the trial Judge entered an order naming DeFrancesco as an additional defendant and entering judgment against him individually for $150,000 plus costs. Vitino's Pizza and DeFrancesco filed a notice of appeal.

Opinion

In their notice of appeal defendants seek review of seven orders, final and interlocutory, entered between September 29, 1983, and September 12, 1988. These orders include several final orders, such as the orders denying Vitino's Pizza's motions to vacate entered on January 29, 1985, and February 28, 1985. However, no appeal was taken from these orders within 30 days of their entry. To seek review of a final order, a notice of appeal must be filed within 30 days from when it was entered. (107 Ill. 2d Rules 301, 303(a).) ...


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