*1 al., et Darling, A. Charles v. Lowell Reinert Plaintiff-Appellant, J. Defendants-Appellees. 70-143; (No.
Second April 1971. District MORAN, dissenting concurring part. J., T. P. pro se. Darling,
Charles A. Burt, Wheaton, for Woodward, Dyer appellees. Rathje, court: delivered the of the opinion GUILD Mr. JUSTICE the order entered is an from This default entered 10th, order of April for subsequent April Charles filed the Attorney 1970. A. defendants entered 27th, 1970. Summons were February the defendant on against complaint 20th, On issued, 10:00 on March 1970. served returnable at o’clock 11:00 filed his at o’clock on that 20th the defendant appearance March However, and an appeared had de- Attorney Darling morning. of the filing appearance to the de- had been entered prior fault the defendant filed motion vacate the default Subsequently fendant. Mr. default vacated and Darling. which was not opposed 1:00 1970. matter o’clock Attorney set at 1:40 he proved at that his witnesses and time with It then before up complaint Magistrate Zettinger. appears Counsel, Zamis, defendant Peter but was not with his Mr. room; matter had Court Mr. under the being impression been set after 1:40 met for 2:00 Mr. Zamis within a few minutes o’clock. they went who refused before *2 vacate the then judgment which he had just Attorney entered. went before Magistrate Magistrate Schnake with and Attorney Darling it, said I have taken care it.” apparently “Forget already Magistrate Schnake does not recall Dr. was whether when he recalls that “he he was going advised that to vacate the order of default.” Magistrate insists Schnake did not make that statement. Schnake, motion, on his own vacated the order
Thereupon, Magistrate of default entered set the matter for hear- 16th, 1970, ing 14, 1970. Plaintiff on April moved the court April 10, set aside the 1970 April order the order of vacating Magis- dismissal. trate Schnake denied this motion. Mr. Darling stood on the record and refused to or take appear the 16th 16th hearing. The April before Magistrate Chivari who entered judgment John defendants, for the and entered an order for the defen- lawyers dant be reimbursed in the sum of $50.00.
The first question is presented as to whether Schnake could vacate the order of dismissal of Magistrate Zettinger, both being Magis trates of the same In Chicago, Court. Pekin R. R. Com Southwestern pany v. Town Marseilles 313 a (1883), 107 Ill. similar question presented. The Supreme Court there stated:
"While it is true that one judge at presided and another passed on the motion for a trial, new the court was all the time one and the * * * same court McRoberts was one of the three circuit judges the circuit in which tried, the case was and in the discharge of his duties as circuit judge he possessed the same and all the judicial powers which were possessed who judge presided when the cause was tried.”
In case of Ricchichi v. City Chicago 320, 49 (1964), 199 App.2d N.E.2d the Court stated: is “It of no moment to whom judge the case was assigned trial vacated the new trial order entered by who at judge presided the first trial. A trial is not bound judge by order of another prior judge. He has the right to review order if prior in his judgment was erroneous and he has the duty to do so if facts or changed circum- stances make the order prior unjust. [Citations.]” 481, 211 N.E.2d See also Scardina (1965), (63 Ill.App.2d v. Colletti 762) which cites with the above approval. vacate
There is no Schnake could question but that in the same order entered the same term another at court.
Turning then to the could in fact question whether the magistrate set aside the order of dismissal on his motion. own
In
v.
said:
Krieger Krieger
Ill.
“Under the practice civil the court in its discretion before final *3 judgment set aside default and within after of days 30 any entry judgment set aside or decree cause shown. any judgment upon good 1947, 110, Rev. (Ill. Stat. ch. term “Court” as used 174(7).) The par. in the Civil Practice Act does not but means particular judge any mean Court, the Circuit since is jurisdiction vested in the court and not in the judges of the Court.”
In Freeman 103, v. Chicago Authority Transit (1965), Ill.2d N.E.2d 191 the Court stated that the Supreme Trial had the power Judge to set a aside of special finding jury on its own motion stating that the Practice Act does bar a Trial not from Judge considering “any grounds not raised by a Freeman, in his written party post trial motion.” In Trial Judge vacated the finding of the in a inter answer to jury special and on rogatory its own motion granted a new trial setting after aside the special finding of the jury. The Court on to went that of say par. 68.1(2) the Civil Practice Act: “* » « that contains an nothing suggests intention to interfere with a of Trial Court to act power its own upon motion.”
“Orders new trials not granting were at all until the appealable Civil 1934, Practice Act became in effective apparently authority of a trial court to a grant new trial on its own motion has not been considered this court. But in those that jurisdictions have considered These de- question is established. power firmly [Citations.] cisions are is judge based that the role of recognition upon not that of a is officer or an and that he presiding umpire, responsible for the justice argu- of the The defendant’s that he enters. judgment ment would take his role and tend to reduce away responsibility to that of an automaton.”
The same his own motion principle the case of a applies Judge an vacating order of default.
Plaintiff insists that the judgment Court’s own motion to vacate the must be in and must state the This is writing ground therefor. Court unable to find for this It is obvious any authority contention. from the facts in this case that fact that Mr. cognizant Zamis, after failing vacate the order of Magistrate default before Zettinger, went before Schnake for that Magistrate purpose. Mr. Schnake said he to vacate whether was going default, or “take care of the matter” Mr. knew that had taken the matter under consideration purpose of default. He received of the order drafted copy Schnake, and subsequently and entered This, do set that order aside. refused to moved to followed. in this has question propriety regard and this The and will be this Marshall not been raised not considered Court. See 306, 120 Nyman Field Co. v. 285 Ill. N.E. 756. cases in Illinois are that the Trial replete proposition discretion, an may,
Court in its vacate default when substantial Act, Stat., will be Under the Practice ch. 110 justice par. done. Ill. Rev. is a court have stated that this matter for the discretion repeatedly Court, of the Trial whether a should day defendant have court be thereby. when would would appear justice promoted above, stated For reasons the order entered Schnake will by Magistrate be affirmed. here,
Based the factual situation and under the same principle above, well, enunciated substantial justice as requires plaintiff 16th, 1970, his day have in court. The order of entered by Judge Chivari favor of the defendant will will be reversed and the matter be remanded for trial on the merits.
Affirmed in reversed in and part, remanded. part ABRAHAMSON, concurs. J., in dissenting Mr. PRESIDING THOMAS MORAN J. JUSTICE
and in concurring part: case, To afford to to view of the it is perspective my necessary present of “facts” related a sequence in record purported bystander’s supplied to us under Court Rule 323 rule That Supreme (c). provides trial court shall hold settle, certify if and hearings, necessary, promptly and order an accurate settling any Rather than report proceedings. conflict, the record seems to court in the of a provided place this position for, nisi prius tribunal and the two September magistrates for attorneys a related parties, court presence reporter, their 9, 1970; best recollections of conflicts happenings April versions were not settled trial court.
From of this reading it is uncontroverted “report proceedings,” that Darling and his witnesses were and for ready 9th 1:00 P.M. the courtroom of The Magistrate Zettinger. case held in abeyance P.M., until 1:40 at which time obtained Darling order, default proceeded prove through case testimony witnesses present, granted costs, $642.81 left. plus P.M., At about 2:00 Zamis appeared Magistrate Zettinger’s courtroom where he moved to set aside the default judgment. The denied magistrate motion, stating had, that he at defendants’ va- request, previously cated a judgment in the same Zamis then case. stated that he wanted to discuss the matter with the Chief came the scene Judge. at this time and all three went to see the Chief Judge. latter was bench, instructing jury, so the three waited in the at- adjoining torney’s conference room. Zamis left the room and out sought Magistrate Schnake.
From this versions point, vary.
Zamis states that Magistrate Schnake in a courtroom with Zamis, present; he moved for the vacation of the default; motion; that Darling argued against the that Magistrate Schnake asked Magistrate if he Zettinger would vacate order, to which he not; he would replied that Magistrate Schnake then stated that he would order; vacate the that all left and the next day order, received an signed Magistrate Schnake, default judgment.
Both Magistrate that, claim after Zamis left room, conference Magistrate stated, came in and it, “Forget already it,” I’ve taken care of and left.
Magistrate Schnake’s version is that upon returning from lunch shortly P.M., after 2:00 Zamis approached him and advised him of the circum- stances leading default; the order of that he then conferred with *5 room, stating in the next to the conference Zettinger hallway aside; that he should be set thought, interest of the default justice, answered, what you “Do Zettinger did not but agree or, want do,” then told “Do and that he what think is right,” you He he Zettinger was to set aside the default going judgment. was uncertain as to whether was at the time.
I for the con believe it is clear to the rules of anyone practice ducting of When orderly proceedings were not followed. denied judgment, the defendant’s motion to vacate the default
this amounted to final and order. Commonwealth (See, appealable Loan Co. v. Baker 40 Ill.2d v. Conrad Bailey 508-509 (1915), 271 Ill. Whether the court or not is 295.) arbitrarily acted of no was, consequence here since there taken no “technically,” Rather, from that denial. defendants at the trial sought ruling higher level from a different judge. Research has to no for a been avail precedent upon which to bottom such action in the instance of a final Subse order. quent denial, to the without notice or the plaintiff opportunity heard, be (neither magistrate claims that a second with the parties present took place, and make an asser the defendants such only tion) Magistrate Zettinger’s order was vacated.
The cases cited are majority not in none concern a point since final this, however, order. it Despite is unconscionable to me to allow the “procedure” followed in this case since lends countenance and en- couragement to practice all “judge shopping” dissatisfied liti- gants.
Even more basic to dissent is the fact that my plaintiff given neither notice nor to be heard before the opportunity order vacating reason, was entered the default and for this in my opinion, and should void be reversed. So litigants not be denied substantial justice because of counsel, the actions and of both court I procedures would concur majority cause for a remanding original hearing on merits.