Dunlap v. Gregory

Wilson, J. It is the settled rule in this State that motions to set aside defaults are addressed to the sound legal discretion of the court, and unless there has been such an abuse of that discretion as works palpable injustice, appellate tribunals will not review such decisions. The Supreme Court has expressed the rule by varied language in different cases. In some of the earlier cases stronger qualifying terms were used than in more recent cases. In Greenleaf v. Roe, 17 Ill. 474, the language is “ very gross and flagrant abuse”; in Rich v. Hatheway, 18 Ill. 549, “ gross and flagrant abuse ”; in Union Hide and Leather Co. v. Woodley, 75 Ill. 436, “gross abuse”; Hitchcock v. Hersen, 90 Ill. 543, “palpable abuse”; Andrews v. Campbell, 94 Ill. 579, “ unless it appear that the discretion has been abused and injustice done.” In Mason v. McNamara, 57 Ill. 274, the Supreme Court said: “ As we understand the long and well-settled practice in this State it has always been liberal in setting aside defaults at the term at which they were entered, where it appears by affidavit that the party has a defense to the merits, either as to the whole or a material part of the cause of action; it lias been usual to set aside the default if a reasonable excuse is shown for not having made the defense. In such cases the object is that justice be done between the parties, and not to permit one party to obtain and retain an unjust advantage.” In Allen v. Hoffman, 12 Bradwell, 576, the court said: “ But he was not bound to show the highest degree of diligence, his motion to set aside the default having been made at the same term at which the default was entered. All he was bound to show was a good and meritorious defense, and the exercise on his part of reasonable and ordinary care and diligence.” In Waugh v. Suter, 3 Bradwell, 274, it is said: “In applications to set aside default, we regard the point of a meritorious defense as altogether the more important of the two required, and where the judgment is evidently unjust, a certain degree of neglect may, especially as terms can be imposed, be held to be excusable.” In the light of these eases the rule may be properly stated thus: When a judgment which is plainly unjust has been rendered against a party by default, if a reasonable excuse is shown for not having made a defense, and the party against whom the judgment is rendered exercises reasonable and ordinary diligence in moving to set it aside, it is the duty of the court to exercise its discretion by granting the motion, especially if it be made at the same term at which the judgment is rendered. The discretion vested in the courts to grant or deny motions of this character is not an absolute but a legal discretion, which is subject to be reviewed. Were it otherwise the gravest consequences to the rights of persons and property might result through the mistakes or errors in judgment of inferior tribunals. Accoi’ding to the showing of the affidavit of Dunlap, which, for the purposes of the motion to vacate, must be taken as true, the plaintiffs’ demand at the time of the trial had been reduced to $1,033.41, if it had not been wholly extinguished, and yet they obtained and are seeking to retain a judgment for six thousand dollars and upward. To permit such a judgment to stand would be a reproach to a court of justice, unless, indeed, the plaintiff in error is chargeable with such a degree of negligence as to leave him no standing in court. This, we think, is not shown. His residence was in Iowa, but being found here he was arrested on the capias issued in the cause and thrown into prison. He employed Albion Cate, Esq., a practicing attorney of Chicago, to assist him in his defense, paying him $100. A motion to quash the capias was made by Cate, which prevailed, and Dunlap was discharged from arrest. Supposing from information derived from Cate, as he swears, that the quashing of the capias put an end to the suit, he returned to his home in Iowa. He subsequently received a letter from Cate, saying the case was not ended, but needed further attention, and demanding an additional $100. He immediately replied by mail, saying he understood the $100 already paid was to secure Cate’s services in the entire litigation, but that if'Cate required it he would send him $25 to pay him for procuring a continuance and pro-tenting his interests until he could .reach Chicago and arrange for his defense. In order to guard against the chances of miscarriage, he also wrote to another Chicago attorney, one Longeneker, asking him to see Cate, and if the latter did not intend to act for him, requesting Longeneker to obtain the papers and act as his attorney in the case. He thus supposed, as he says, that he had made complete arrangements for defending the action, and did not learn the contrary until informed by Longeneker in a letter dated December 8, 1888, two days after the judgment had been rendered against him by default for want of appearance, Cate’s previous appearance having been special and confined to the motion to quash the capias. January 5, 1884, and during the same term, plaintiff in error entered his motion to vacate the judgment and set aside the default. Under the showing as thus made we can not say that there was any such lack of diligence on the part of plaintiff in error as to debar him from an opportunity to present his defense upon its merits. Perhaps in the exercise of the very highest degree of diligence, his motion to vacate should have been made more promptly, but it is to be borne in mind that he lived in another State, at a distance from Chicago, where the defendants in error had seen fit to arrest him; moreover, so far as appears, they had suffered no loss by the delay. The judgment is reversed and the cause remanded with directions to the court below to vacate the judgment, set aside the default and allow the defendant to plead to the merits. Reversed and remanded.