Warner v. Wende

Mr. Justice Barnes delivered the opinion of the court. This writ of error brings for review an order vacating a judgment on a motion made at a term subsequent to its entry, based on the claim that such judgment was entered through a mistake of fact caused by the misprision of the clerk. The main question presented is whether the entry of the judgment under the circumstances was error in fact, such as may be corrected by a motion pursuant to section 89 of the Practice Act (J. & A. 8626), or error in law. The original suit was in attachment, and notice, pursuant to section 22 of the Attachment Act (J. & A. jf 513) requiring defendant to appear at the July 1917 term, was published. Nothing further appeared of record until September 18, 1917, when a default was entered against defendant in error, and on September 27, 1917, judgment against her was entered on the verdict of a jury. On November 1, 1917, defendant in error was given leave to file a motion to vacate the default, verdict and judgment, and the motion was continued to November 5, 1917. On December 10, 1917, on defendant’s motion, the default, verdict and judgment were vacated and set aside, the case reinstated and defendant given leave to plead, and thereafter defendant pleaded the general issue and traversed the facts in the attachment affidavit that the defendant was about to fraudulently conceal, etc., her property so as to hinder or delay her creditors. Facts not on the face of the record set up in the affidavits in support of the motion to vacate the judgment were that defendant filed a special appearance at the July term, 1917, stating it was for the sole purpose of moving to quash the writ of attachment and release the levy on certain grounds specified therein, which, if true, rendered the attachment invalid; that her appearance fee was paid (the clerk’s receipt for which was later produced); that the motion was made and continued, and that no entry thereof was made on the court’s docket, and that the papers given to the clerk for filing were not placed in or did not appear in the files. It was said in People v. Noonan, 276 Ill. 430, that a motion under such section must set up and rely on such fact or facts as are unknown to the court and do not appear upon the face of the record, and which, if known, would have precluded the rendition of the judgment. All these elements are present in the case at bar. Had the court known of the pendency of a motion based on grounds that would have defeated the attachment, it unquestionably would not have entered a default, at least without disposing of the motion. But it acted in ignorance of such motion, knowledge of the pendency of which was prevented through misprision of the clerk in not preserving in the files the papers so left and making the proper entries on the docket. Plaintiffs in error urge that had such papers been on file and such entries been made and the court had proceeded in disregard of them, its action would have been merely an error in law. That may be granted, but such hypothesis furnishes no test of the question before us. Error in that case could have been reviewed from what appeared on the face of the record; but not so where, as here, without defendant in error’s negligence, the court’s judicial determination was in ignorance of facts not appearing on the face of the record, and which, but for the misprision of the clerk, would have been brought to its attention and doubtless have precluded rendition of the judgment. For had the court quashed the attachment writ on the motion, it would have been left without jurisdiction to enter the judgment for want of personal service or general appearance. Plaintiffs in error contend here that the motion was not in writing, as required to be under section 89. While we think the record indicates otherwise, plaintiffs in error in urging objections below to the sufficiency of the motion specifically referred to the motion as having been filed, and will not, therefore, be heard to contend to the contrary here, unless the record admits of no other construction. Nor do we think that the further contentions that the affidavits in support of the motion do not sufficiently set forth a meritorious defense, and that defendant did not exercise due diligence in calling up the motion, are well taken. We think the case comes within the purview of section 89 of the Practice Act, and that the court’s action was proper. Affirmed.