Schick v. Durham

Mr. Presiding Justice Taylor delivered the opinion of the court. This is an appeal from an order of the Municipal Court overruling a motion of the- appellant to set aside a judgment. On January 3, 1917, appellees filed a statement of claim alleging that there was due them the sum of $46.25 for a breach of a contract concerning certain commissions. On January 3, 1917, a summons was issued, returnable January 10, 1917, at 9:30 a. m. at Branch No. 6, Boom 913 of the Municipal Court. On January 8, 1917, appellant filed his appearance and demanded a trial by jury. On the return day, January 10, 1917, the casé was called before Judge Doyle, and, on the evening of that day, the Daily Municipal Court Becord published (as an order entered on that date, by Judge Doyle, who was, on that date, presiding in Boom 913, Municipal Court of Chicago) the following: “591392, Schick v. Durham. Next Jury Calr.” The actual record of the case shows, however, that on the day the case was called before Judge Doyle, that is, January 10, 1917, it was transferred by Judge Olson to Judge Goodnow; that on the next day, January 11, 1917, it was transferred by Judge Goodnow to Judge Olson; that on the same day it was transferred by Judge Olson to Judge Gem-mill, and, before him, tried by a jury and, after verdict, judgment entered thereon in favor of appellee for $46.25 and costs. An execution was duly issued on January 13, 1911 f and a demand made upon the appellant. On January 16, 1917, appellant notified appellees, in writing, that on the following day it would move the court to vacate and set aside said judgment. In support of its motion it filed an affidavit and also served a copy on appellees. On January 17, 1917, the motion was duly made, heard and overruled. This appeal was instituted to reverse the action of the trial judge in refusing to vacate and set aside the judgment of January 11, 1917. It is claimed by the appellant that he was misled by the publication in the Daily Municipal Court Record- of the following words and figures: “591392, Schick v. Durham. Next Jury Calr.” As a matter of fact no such order was made and the published statement was wrong. It was entirely erroneous, and, to any one relying upon it, misleading. We are of the opinion, however, that appellant was not justified in relying entirely upon the above-mentioned publication. The claim of appellant that the action of the trial judge, in overruling the motion to vacate, in view of all the circumstances of the case, was arbitrary and an abuse of the discretionary powers of the court. In Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277, Mr. Justice Hand said: ‘ ‘ The rule is that diligence and merit must both be shown, and when it appears that the party defaulted has failed to exercise due diligence to protect Ms rights, it has never been held an abuse of discretion to refuse to vacate a default judgment.” Diligence must be shown. Barrett v. Queen City Cycle Co., 179 Ill. 68; Schultz v. Meiselbar, 144 Ill. 26. In their briefs, counsel for appellant urge that the judgment resulted from “the undue diligence on the part of counsel for the appellees.” Great diligence by one party, however, can never be said to be a justification for, or a condonation of, negligence on the part of another. In the prosecution and conduct of all legal proceedings, at the peril of .every participant, and even though sometimes a manifest hardship results, the law reqMres reasonable diligence. Bearing in mind, therefore, the regularity of the orders (that were actually made in the instant case) and the opportunity the appellant had, by proper diligence, to protect his rights and be present in court when his case was considered, notwithstanding the publication to which reference is made, we are unable to conclude that the trial judge, in the” exercise of that discretion with which the law empowers him, erred in refusing to vacate the judgment. Finding no error in the record the judgment is affirmed. Affirmed.