Di Meo v. Hines

Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by the defendant from an order entered by the superior court of Cook county on June 3, 1922, nunc pro tunc as of May 13, 1922, vacating an order theretofore entered on July 1, 1921, which last named order dismissed the plaintiff’s suit for want of prosecution.

The facts appear to be that the plaintiff brought action in case against the defendant, filing her suit on February 10, 1920. On March 17 thereafter she filed a declaration. To this declaration the defendant filed pleas on April 6, 1920, and on December 1 thereafter an order was entered striking the cause from the docket. On June 28, 1921, this cause, with other stricken cases, was ordered reinstated and the clerk was ordered and directed to place these cases on the trial call of Judge McKinley for Friday, July 1, 1921. The order further provided that cases in which there was no response by either party should be dismissed, but that the same might be reinstated on order of the court at any time within ninety days thereafter upon the plaintiff giving due and proper notice to the opposing party.

February 9, 1922, the plaintiff made a motion to vacate the order of dismissal of July 1, 1921. This motion was supported by an affidavit which set up the foregoing facts, all of which appear of record, and further alleged that neither the plaintiff nor her attorney had any notice of the entry of the order of dismissal until the 22nd day of July, 1921; nor that prior to that time did either of them have notice that the cause had been redocketed or placed upon the trial calendar; that within two or three days after acquiring such knowledge, having given notice to opposing counsel, the plaintiff went to Judge Pam, then sitting as vacation judge in the superior court, and made a motion to set aside the said order dismissing the suit and presented the facts by affidavit; that she was informed by Judge Pam that he could not consider the motion, but that the matter should be presented to Judge McKinley, who was then and since then has been sitting in the criminal court of Cook county.

Counsel for appellee have incorporated in the record certain rules of the superior court and urge that the order of June 28, 1921, violated these rules. This appeal, however, is not from that order, and it is therefore not before us for our consideration. This appeal is from the order which reinstated the cause. It is not a writ of error which would bring the whole record before us for consideration.

The appellee insists that the order of reinstatement of May 13, 1922, was not a final and appealable order, and in support of this contention we are cited to Andrews & Co. v. Anchor Folding Box Mfg. Co., 210 Ill. App. 636, and People v. Wells, 255 Ill. 450. One branch of this court so held in Madden v. City of Chicago, 205 Ill. App. 612, but this court has held to the contrary in Bishop v. Illinois Western Electric Co., 221 Ill. App. 141, relying on Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516. We adhere to our opinion.

As the term of court at which the order of dismissal was entered had expired long prior to the time when the plaintiff made the motion to reinstate, it is apparent that th¿? court had lost jurisdiction unless facts were made to appear which would bring the motion within the provisions of section 89 of the Practice Act [Cahill’s Ill. St. ch. 110, [f 89]. That section provides that the writ of error coram nobis is abolished and that in lieu thereof the court upon motion may correct errors of fact which, if the same had been before the court, would have prevented the rendition of the judgment. Gould’s Estate v. Watson, 80 Ill. App. 242, and Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516. That an order of dismissal is a final order and disposes of the cause is, we think, too well established to require the citation of authorities. Glaefke v. Western Electric Co., 145 Ill. App. 383.

The plaintiff, however, contends that the combined effect of the orders, namely, that of June 28, 1921, which placed the case upon the trial calendar with the provision for reinstatement on notice given within ninety days, and that of July 1, 1921, dismissing the cause for want of prosecution, was to give the judgment of dismissal a conditional character; that it was to be final only in case the notice was not given; that the giving of the notice and the application made to reinstate the cause prevented the judgment from be-, coming final, and that the court therefore did not losé jurisdiction. Watson v. Le Grand Roller Skating Rink Co., 177 Ill. 203; Shannahan v. Stevens, 139 Ill. 428; Evanski v. Mt. Olive & Staunton Coal Co., 223 Ill. App. 33, and Miller v. Miller, 219 Ill. App. 212, are cited as tending to sustain this view. These are cases where a motion to set aside was made at the judgment term and continued either by order of the court or by virtue of the provisions of the statute. We do hot regard the cases as in point.

The language of the orders in the instant case is clear and, we think, precludes the construction for which plaintiff contends.

The case therefore turns on the question raised by plaintiff’s contention that the, failure of the clerk of the court to enter a minute of the appearance of plaintiff’s attorney before Judge Pam and a minute of the application which the affidavit asserts was then made to have the case reinstated constituted errors of fact such as would give the court jurisdiction under the provisions of section 89 of the Practice Act [Cahill’s Ill. St. ch. 110, [¶] 89] after the expiration of the term at which the judgment of dismissal was entered. This question raised must be answered in the negative for several reasons.

In the first place, conceding a misprision on the part of the clerk (which we do not assert), it is alleged to have occurred after and not before or at the time of the rendition of the judgment. We do not understand that such misprision can be made the basis of a motion of this kind. To so hold would be to render judgments of the courts unsafe and insecure. The affidavit does not show that the court at the time of rendering this judgment was ignorant of any fact,which then existed which would have prevented its rendition. Only such facts, as we understand the law, can be made the basis of the motion. Warner v. Wende, 214 Ill. App. 431-433; People v. Noonan, 276 Ill. 430.

In the next place, we think plaintiff is not entitled to the benefit of the motion because she failed to show that she was free from negligence in the matter. The affidavit submitted in her behalf is to the effect that Judge Pam told plaintiff’s attorney1' that the application should be made to Judge McKinley. There was then plenty of time in which to make such a motion. The only excuse offered was that Judge McKinley was then sitting in the criminal court of Cook county. This did not devest Judge McKinley of' his powers as a judge of the superior court, yet no effort was made to have him hear or dispose of the matter within the time limited by the order. “The motion is not intended to relieve a party from the consequences of his own negligence.” Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 521. Moreover, we think that there is merit in the contention of defendant that reasonable diligence on the part of the plaintiff would have made known to her the fact that the clerk had not made any minute or entered her motion. Moreover, a notation of the clerk that such a motion was made would not of itself have made such motion a part of the common-law record. It could become such only by being preserved by a bill of exceptions, and there was no attempt to do this. There is therefore no proper showing in the record that any such motion was in fact made. Indeed, we think it may fairly be inferred from the statements of the affidavit that plaintiff herself did not consider that any motion had been made before Judge Pam, but that she expected at another time to make the motion before Judge McKinley, which she failed to do.

For these reasons we think the court erred in entering an order reinstating the case, and the same will be reversed.

Reversed.

McSurely, P. J., concurs.