Loew v. Krauspe

Mr. Justice Gridley delivered the opinion of the court. After a review of the petition or motion, plaintiff’s answer thereto, the affidavits and documentary evidence introduced on the hearing, and the exhaustive briefs and arguments of respective counsel, we feel constrained to hold that the circuit court erred in entering the order appealed from, viz., setting aside said judgment for $4,000 against defendant, etc. Said order, based as it was on a finding that errors of fact were committed in the rendition of the judgment, is an appealable one. (Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, 526.) Defendant’s motion to set aside the judgment was not made until after the term at which it was entered had passed. It is well settled that, after the term has passed at which a court having jurisdiction of the subject matter and of the parties has entered a judgment, such judgment cannot be set aside by said court except for certain errors of fact committed in the proceedings, and then in the manner as provided by section 89 of our Practice Act [Cahill’s St. ch. 110, ft 89]. (Kelly v. City of Chicago, 148 Ill. 90, 96; People v. Weinstein, 298 Ill. 264, 269; Pisa v. Rezek, 206 Ill. 344, 345; Consolidated Coal Co. v. Oeltjen, 189 Ill. 85, 87; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, 519; Marabia v. Mary Thompson Hospital, 309 Ill. 147, 152.) In the Oeltjen case it is stated that the motion is not one which is addressed to the equitable powers of the court, nor one which the court may allow or deny in its discretion. In the Cramer case it is said (p. 521) that “the motion is not intended to relieve a party from the consequences of his own negligence,” and (p. 522) that “the error in fact which may be assigned under the motion must be some fact unknown to the court which, if known, would have precluded the rendition of the judgment.” In the Marabia case (p. 153) there are listed certain errors of fact, which may be corrected by motion under the statute, viz.: “The disability of parties, the incapacity of the plaintiffs to sue or the disability of the defendants to defend, such as infancy, coverture, death of one or more of the parties, death of a joint party, insanity”; and the court says: “Any of these facts, if known to the court, would prevent the entry of a judgment, and it is to error arising out of lack of knowledge by the court of such facts that the writ of error coram nobis, or the motion which is its substitute, applies, and not to lack of knowledge on the part of the court of facts constituting a cause of action or a defense to it.” Counsel for appellee mention in one part in their printed argument the “default or misprision of the clerk” in erroneously placing the Loew case on the “call” for February 18, 1924, instead of February 11, when it was first ready to be tried as a case properly on the short cause calendar; and in another part of their argument they state that there were “three undisputed errors of fact,” viz.: (a) “The unauthorized act of the minute clerk in placing the case on the trial call on February 18th when it had been set for trial on the short cause calendar for February 11th.” (b) “The unauthorized act of the minute clerk in placing the case on the trial call of Judge Swanson, when it properly belonged to the trial call of Judge McG-oorty.” (c) The fact that the case was not called or tried on February 11, although “set for trial on the short cause calendar” for that date, but was called and tried on February 18, “constituted a continuance of the case which, by virtue of the statute and the law, resulted in striking it from the short cause calendar, and it could not again be placed thereon without the service and filing of a new notice and affidavit.” Under the allegations of defendant’s petition and the evidence presented on the hearing of his motion we fail to find any “default or misprision” of Judge Swanson’s minute clerk in placing the case on Judge Swanson’s call for February 18, instead of February 11. Doubtless he acted under the orders of Judge Swanson in making up the calls for both of those days. While the evidence discloses that the case was ready to be tried as a short cause case on February 11, it also appears that Judge Swanson was engaged on February 11 in completing the hearings, previously entered upon, of two cases, entitled “In re Howard,” and doubtless he, in directing the number of cases to be placed on his call for February 11, took into consideration the fact that he would be so engaged. Furthermore, it is provided in section 28 of the Practice Act [Cahill’s St. ch. 110, 28] that the short cause calendar “shall be a continuous calendar and suits once placed upon it shall remain thereon until disposed of in their order.” As to the three “undisputed errors of fact” above mentioned, appellee’s counsel in two instances make the erroneous assumption that the case was set “for trial” on the short cause calendar for February 11. The evidence discloses that the first time the case was set for trial was when it was placed on Judge Swanson’s call for February 18. And we fail to see wherein Judge Swanson’s minute clerk committed any unauthorized act in placing the case on Judge Swanson’s trial call for February 18, or that the case should have been placed on Judge McGoorty’s trial call. It clearly appears from the evidence that by general orders of the judges of the circuit court, of which all attorneys were given timely notice, Judge Swanson had been assigned to hear all short cause cases of said court. And when the case, after proper affidavit and notice duly served and filed, had been placed on the short cause calendar, the effect was to strike it from calendar No. 4 of the general calendar, which Judge McGoorty by order of the judges was then calling. (Section 31, Practice Act.) [Cahill’s St. ch. 110, [[ 31.] As to appellee’s counsel’s point “c,” above mentioned, it is evident that they have in mind the provisions of section 30 of the Practice Act [Cahill’s St. ch. 110, [[ 30], as follows: “A suit upon the ‘ Short Cause Calendar’ may be passed or continued for good cause shown the same as other suits, and if so passed or continued it shall lose its place upon such calendar, but may be again placed thereon. ’ ’ The evidence does not disclose that the Loew case was ever passed or continued. After it was placed on the short cause calendar, the first time it was set for trial was on Judge Swanson’s call for February 18, the day it was tried. For the reasons indicated the order of the circuit court appealed from, entered June 9, 1924 (setting aside the judgment for $4,000 rendered against Harry F. Krauspe on February 18, 1924) is reversed. Reversed. Fitch, P. J., and Barnes, J., concur.