Pitzele v. Lutkins

Mr. Justice Shepard delivered the opinion of the court. Appellee began his suit in attachment in the court below against one Nathan, of New York, and attached certain goods and garnisheed certain credits as the property and credits of said Nathan. No defense to the suit was made by Nathan. The appellants interpleaded in the suit and claimed the attached goods as their own by purchase, and the credits garnisheed as theirs by assignment. Issue was joined on the interplea, and the cause was placed on the trial call of the Superior Court for Tuesday, April 12, 1898, and remained on the call continuously thereafter until it was reached for trial on the afternoon of Thursday, April 14th. At about half after one o’clock of said Thursday, the court called four cases that stood upon the trial call, to see if parties were ready for trial, with the result that it was announced the first one had been settled, and that the next three, of which this case was the last one, were ready for trial, the appellants being present and responding by their counsel. Shortly afterward appellants’ counsel left the court room, and during his absence the case was called, and the inter-plea was dismissed for want of prosecution at appellants’ cost. Four days afterward, the appellants moved the court to set aside the order dismissing the interplea and said judgment for costs, upon affidavits then read to the court and filed, but the court overruled the motion and this appeal has followed. The sole question to be considered is, was there such a palpable abuse of discretion by the trial court in refusing to set aside said order as will justify us in interfering % “It is the settled and long-established rule in this State that a motion to set aside a default is addressed to the sound legal discretion of the court in which it is made, and that unless there has been a palpable abuse of said discretion the Appellate Courts will not interfere. It is only where it is evident the action of the court below has been unjust and oppressive, and has resulted in a substantial injury to the appellant, that such action will be reversed on review.” Hitchcock v. Herzer, 90 Ill. 543. The object to be attained in considering an application to vacate a default judgment is justice—not .justice in the abstract, but justice between the parties in. the particular case, in view of all the circumstances. Mason v. McNamara, 57 Ill. 274. So, it has been held that though the defaulted party has a good defense upon the merits, but he has failed to exercise proper diligence, the default will not be set aside. Mendell v. Kimball, 85 Ill. 582. Nor will the negligence, or lack of diligence, by his attorney, or of both himself and his attorney, avail him. Mendell v. Kimball, supra; Treutler v. Halligan, 86 Ill. 39; Schultz v. Meiselbar, 144 Ill. 26. We do not doubt the power of this court, or the propriety of its exercise upon a proper showing, to review and reverse the judgment of the court below for an abuse of its discretion in refusing to vacate a judgment by default upon application therefor made in the term at which the judgment is entered. The cases where the power has been exercised are too numerous and too familiar to require citation. But to invoke the exercise of the power, three things must be made to appear to the court below, viz.: that the defaulted defendant has a meritorious defense to the plaintiff’s claim in whole or in part; that neither he nor his attorney were neglectful, of their rights and duties in the particular case, and that some “substantial injury” to him has resulted, before this court may properly say the court before whom the application was made, erred in refusing to set aside the judgment. If it be granted, as it may be on the face of the affidavit by one of the appellants, that appellants had a prima, facie defense to a part, at least, of appellee’s suit, we do not think his diligence in asserting such defense was sufficient for us to say there was error. The case bad been upon the trial call for three days. A test call was then made of the undisposed cases for the day, with the view of making an announcement for the convenience of the members of the bar in attendance. The result showed that but two cases ahead of this one remained to be disposed of. Appellant’s attorney was present at that call and responded to it that he was ready. Making inquiry, the attorney was told by the attorney in one of the cases that was ahead of this one that that case would require fifteen minutes of time. Thereupon the attorney left the court room and went out to do some telephoning, without leaving word with the court, or anybody except his adversary, of his purpose. At that time one of the appellants was in an adjacent court room, “ within call all of said afternoon, and was ready ” for the case; but, so far as appears, the attorney left no word with him of his intention to go away, or to watch the case. Although the attorney returned in a comparatively short time, he was absent long enough for the two cases that had precedence of the one at bar to be disposed of and this one" heard. And it was not until four days after the judgment was entered that any motion was made to set it aside. The Superior Court was not satisfied with the showing of diligence that was made, nor are we to such an extent as would warrant us in saying that there was error in the discretion reposed in that court. Furthermore, no material injury to appellants is shown, except, perhaps, bjr way of inference, and inference is not enough to rest applications of this kind upon. “In applications to set aside judgments entered by default, or entered in ex parte proceedings, affidavits in support of such applications are to be construed most strongly against the party making them. It is not sufficient to state facts from which, if proved on a trial, a defense might be inferred.” Crossman v. Wohlleben, 90 Ill. 537. The most that is made to appear in respect of a resulting injury to appellants, because of the court’s refusal to set aside the judgment, is that appellants’ claim to the property attached is based upon an executory agreement by appellants with Nathan to credit the value of the property upon a note of Nathan held by appellants; but the value of the property is not stated, nor the alleged purchase price of it, and, non constat, the note is as good as it ever was against Scheyer. To hold that such error was committed by the trial judge as to require a reversal of this judgment, would be to put a premium upon the conduct of such defendants and their attorneys as- might in future suits get their cases ready for trial and, at the hour of their being called, withdraw from the court rooms and leave judgment to go against them by default, and then, some days later, come in and ask for a setting aside of the judgment upon ex parte affidavits, showing a meritorious defense and nothing more, and thereby gain delay. We observe no sufficient ground for disturbing the judgment of the Superior Court, and it will be affirmed.