Cramer v. Illinois Commercial Men's Ass'n , 260 Ill. 516 ( 1913 )

Mr. Justice Cartwright

delivered the opinion of the court:

The appellee, Dora Cramer, brought suit in assumpsit in the circuit court of Cook county on September 14, 1910, against the appellant, the Illinois Commercial Men’s Association, on a policy insuring her son against accidental death. The appearance for the defendant was filed on November 17, 1910. The declaration was filed on December 9, 1910, with an affidavit showing the nature of the demand and the amount due after allowing to the defendant all just credits, deductions and set-offs, and on.December 20, 1910, a plea of the general issue and sixteen special pleas were filed without any affidavit of a good defense to the suit upon the merits to the whole or a portion of the plaintiff’s demand. On January 14, 1911, on motion of the plaintiff, an order was entered striking from the files the “plea” of the defendant for want of an affidavit of merits. The defendant was then defaulted, damages were assessed at $5345.13, and judgment was entered for that amount with costs of suit. The judgment was entered the last day of a term of the court, and at the next succeeding term, on January 30, 1911, in pursuance of notice to the plaintiff, a motion was filed by the defendant to set aside and vacate the order striking its plea from the files, and also the default, assessment of damages and judgment. The motion specified twenty-eight alleged errors in the action of the court, and it was accompanied by an affidavit of.the attorney stating the facts upon which the motion was' based. The plaintiff did not take issue on' the facts stated in the affidavit, but by a pleading in the nature of a demurrer submitted to the court questions of law- whether the court had jurisdiction, after the term, to enter any order affecting the judgment, whether the motion presented any other than alleged errors of law appearing upon the record, and whether the plaintiff should be required to make any further defense to the motion. The court sustained the motion and set aside and vacated the default and judgment. The plaintiff appealed to the Appellate Court for the First District, and that court reversed the order sustaining the motion and setting aside the default and judgment and granted a certificate of importance and an appeal to this court.

After the expiration of the term of court at which a judgment is entered the court has no authority to set aside the judgment for any alleged error of law, and can only amend it in matter of form after notice to the opposite party. (Cook v. Wood, 24 Ill. 295; Cox v. Brackett, 41 id. 222; Barnes v. Henshaw, 226 id. 605; People v. Wilmot, 254 id. 554.) The court, however, may correct errors of fact after the term by virtue of section 89 of the Practice act, which provides that errors in fact which by the common law could be corrected by the writ of error coram nobis may be corrected, upon motion, within five years after the rendition of 'judgment. In the Appellate Court it was contended that the order appealed from did not constitute a final order or judgment from which an appeal could be taken, and it is insisted here that the Appellate Court erred in assuming jurisdiction of an order which was not final. It is true that if a court sets aside or vacates a judgment otherwise than under the° motion substituted for the writ the order is interlocutory and the parties must await a final judgment, from which an appeal or writ of error will lie. (Walker v. Oliver, 63 Ill. 199; City of Park Ridge v. Murphy, 258 id. 365.) Aside from disputing the jurisdiction of the Appellate Court, the argument is that there was error of fact which authorized the circuit court to set aside the default and judgment, and we will not presume that the court attempted to examine, revise or correct its action for an error of law at a subsequent term, in view of the long established rule that it would have no power to do so. (Pisa v. Rezek, 206 Ill. 344.) The motion was intended to allege errors of fact, and unquestionably the action of the court was based on a finding that there were such errors. That being so, the law allowed an appeal from the order as in any other case of final judgment. Mitchell v. King, 187 Ill. 452; Domitski v. American Linseed Co. 221 id. 161.

In Walker v. Oliver, supra, the suit was in Ford county against Oliver and two others. Oliver was a resident of Livingston county. No summons was issued to Livingston county and no process was served on Oliver and he did not appear. He did not know of the judgment until after the term, and on his motion the judgment was set aside. The judgment was void for want of jurisdiction apparent on the face of the record as a matter of law, and the motion to set it aside was for error of law and not for error of fact. So, also, in City of Park Ridge v. Murphy, supra, a reason for vacating the judgment was a want of proper service of notice on Murphy or his agents, which showed a want of jurisdiction.

The material facts stated in the affidavit as matters of fact were that there were rules of the court, one of which provided that suits brought were given two numbers, and at the close of each day’s business the clerk was required to distribute,'in rotation, 'to the judges who had common law calendars, the common law cases commenced during the day, and to place upon the wrapper of eaqh case the name of the judge to whom it was assigned; and the other provided that no motion would be heard or order made in any cause without notice to the opposite party when the appearance of such party had been entered, except where the party was in default or when a cause -was reached on the call of the trial calendar; that the clerk did not place on the wrapper containing the files of the cause the name of any judge, as required by the rule, and that no notice of the intended proceedings in court was given or served.

The writ of error coram nobis at the common law would lie to correct purely ministerial errors of the officers of the court, (1 Archbold’s Pr. 234.) If the clerk should fail to file a plea or answer, and by such failure a party should be prevented, without fault or negligence, from making a defense, the error might be corrected by the motion substituted for the writ, but it did not appear in this case that the failure of the clerk to put the name of the judge on the wrapper had anything to do with the proceedings or prejudiced the defendant in any way. There was no showing that the defendant was misled as to the judge who might make an order in the case, and there was another reason why the failure of the clerk would not justify setting aside the default and judgment. The fact that the clerk had not complied with the rule was known or should have been known by the exercise of reasonable care and attention on the part of the attorney for the defendant, and the motion is not intended to relieve a party from the consequences of his own negligence.

The court did not violate the second rule set forth in the affidayit, since the rule itself excepted from the requirement of notice any case where the party was in default. Section 55 of the Practice act provides that if the plaintiff files an affidavit of merits and the defendant fails to 'file with his plea an affidavit of meritorious defense to the whole or some specified portion of the claim, the plaintiff shall be entitled to judgment as in case of default. There was no affidavit, and for that reason the plaintiff was entitled to a default and the rule did not apply. Counsel call attention to the fact that there were seventeen pleas and the order was in the -singular, but it was not necessary to strike the pleas from the files, although such a practice is-proper and not uncommon. (Filkins v. Byrne, 72 Ill. 101; New York Exchange Bank v. Reed, 232 id. 123.) In Braidwood v. Weiller, 89 Ill. 606, it was said that the more usual way of taking advantage, under the Practice act, of the want of an affidavit of merits accompanying the plea is by motion for a judgment as in case of a default or by motion to strike the plea from the files for want of such affidavit. Furthermore, if there was any error in entering default and judgment with pleas remaining on file it was error of law, and not of fact, which could not be reached by the motion. Error of law does not require evidence of facts to make it manifest, and the question whether the court erred in matter of law could only be raised by writ of error from or appeal to a higher tribunal. The attorney by his affidavit sought to excuse himself for neglecting to file an affidavit of a meritorious defense by the facts that he had a great deal of business and had charge of many suits and that affidavits of merits by plaintiffs in insurance suits were infrequent. He alleged that for these reasons he did not malee a careful examination of .the declaration. These facts were not only insufficient as an excuse, but did not constitute error of fact which would have precluded the court from entering the default and judgment if they had been known at the time.

Another sufficient reason for affirming the judgment of the Appellate Court is, that the existence of the rules did not constitute an error in fact which could be brought to the attention of the circuit court by the motion and would not justify setting aside the default and judgment. The error “in fact which may be assigned under the motion must be some fact unknown to the court which, if known, would have precluded the rendition of the judgment. The rules were of record in the court and must necessarily have been of record to have any validity. (Owens v. Ranstead, 22 Ill. 161; Davis v. Northwestern Elevated Railroad Co. 170 id. 595.) Courts take judicial notice of their qwn records, (Taylor v. Adams, 115 Ill. 570,) and the records are always constructively before the court. Under the well-settled law these rules were before the court and judicially known when the orders were made and the judgment entered, and could not, therefore, be made known to the court as errors in fact of which the court was ignorant.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.