Henry v. Seager

Me. Presiding Justice Windes delivered the opinion of the court. It is argued on behalf of appellant that certain affidavits, read in support of the bill on the motion to dismiss, are not sufficient to justify the decree of the chancellor in setting aside the judgment. However this contention may be, we think appellant has waived all question in that regard. He was given an opportunity to answer the bill, as appears from the record, of which he refused to avail himself, and allowed a decree yira confessó to be taken against him. In that state of the case, the chancellor need not have heard any evidence. Appellant will be held to have admitted the truth of all the allegations of the bill which were well pleaded, and we must look solely to the allegations of the bill to determine the correctness of the decree. Farnsworth v. Strasler, 12 Ill. 482; Mason v. Patterson, 74 Ill. 195. In the former case it xvas held that where a bill is taken as confessed, error can not be assigned that the averments were not proved. The sole question now to be considered is whether the allegations of the bill are sufficient to justify the decree. The general rule is, as contended by appellant, that the negligence of the attorney is the negligence of the client; the client is bound thereby, and must look to the attorney if he suffers from the attorney’s negligence. Kern v. Strausberger, 71 Ill. 413; Ward v. Durham, 134 Ill. 195; Bardonski v. Bardonski, 144 Ill. 284; Newman v. Schueck, 58 Ill. App. 328. We are not prepared, hoxvever, to hold that this bill shoxvs negligence on the part of appellees’ attorney. It appears that when the case was called the attorney was in court and asked that the cause be dismissed for want of prosecution, and the judge announced that the case was so disposed of. That was an end of it so far as the attorney was concerned. He had a right to rely on the oral announcement of the judge as to what judgment was rendered in the case, and was not required to see that the clerk entered the order directed to be entered by the judge. 2 Pomeroy’s Eq. Juris., Sec. 836; Allen v. Hoffman, 12 Ill. App. 573; Dunlap v. Gregory, 14 Id. 601; Beveridge v. Hewitt, 8 Ill. App. 467; Walker v. Kretsinger, 48 Ill. 502; Putnam v. Murphy, 53 Ill. 404. The attorney, as well as appellees, had no knowledge until after the lapse of the January, 1898, term of the Superior Court, that the case had not been dismissed, as directed by the judge, nor that a judgment was entered. It was then too late to move in the law court to set it aside, and their only remedy was by bill in equity. If the allegations of the bill are true, their defense at law is,complete. In the Beveridge case, supra, this court quotes from the Walker case, supra, viz.: “ If it appears that the judgment complained of is unjust, and that the party in good faith has Used or endeavored to employ the means given him by the law to assert his rights, and has been active and vigilant in his efforts to make his defense, and is still prevented from presenting a meritorious defense, equity will grant a new trial at law,” and held that where the law court had rules that a new calendar would be made each term, and called and tried the suit upon a calendar made for a previous term, there being no notice to the defendant or his attorney, a judgment so rendered should be set aside and a new trial awarded, it further appearing that the defendant had a good defense. It was said in deciding the case, “ so long as these rules remained in force, they were the law of the court,” and that the attorney, after having ascertained that no calendar would be made for the term when his case was called, was not chargeable with negligence for failing to watch the call that month. If an attorney may rely on the rules of court, he may certainly rely on the judgment of the court announced from the bench. The decree is affirmed.