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37 Ill. App. 3d 415

346 N.E.2d 114

Hoffman v. Hoffman

Appellate Court of Illinois

Decided April 15, 1976

Appellate Court of Illinois · decided 1976-04-15

Cited by 17 later decisions — most recently May 1982

17 state decisions

Key passage — most relied on by later courts

““It is undisputed that section 50(5) (Ill. Rev. Stat. 1973, ch. 110, par. 50(5)) no longer mandates that affidavits be submitted in support of a motion to vacate an order of dismissal. The defendant, however, maintains that supporting affidavits should be submitted where good cause for the vacation is not shown as a matter of record and the order to be vacated was entered with”

quoted by 2 later decisions, including Baltz v. McCormack, 62 Ill. App. 3d 215 - Lettvin v. Suson

““Apparently, the appellants did not seek leave to file their objections on the theory that the court had authority to set aside a default judgment, but pursuant to the provisions of section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 50(5)), the court, in its discretion, could have done so. Under this section, it is no longer necessary that such relief be sought on the precise grounds that there is a meritorious defense and a reasonable excuse for not having timely asserted such defense. The overriding consideration now is whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits. [Citations.]””

quoted by 1 later decision, including 45 Ill. App. 3d 550 - Columbus Savings & Loan Ass'n v. Century Title Co.

Relies on 48 Ill. 2d 402 - People Ex Rel. Reid v. Phillip G. · 2 Ill. App. 3d 493 - Knight v. Kenilworth Ins. Co. · 23 Ill. App. 3d 1035 - Keafer v. McClelland

Good law ✅— No negative treatment on recordhow we know

Decided 1976-04-15

View the full empirical analysis of this case →

Mr. JUSTICE DIXON

¶1 delivered the opinion of the court:

¶2 PlaintifF filed a petition to modify a decree in order to increase child support. The notice of hearing stated that the cause was set for December 6, 1974. Upon arrival in court that day defendant and his attorney found that court was not in session and that a new date would be set. A week later defendant’s attorney was informed orally by plaintiff’s attorney that the hearing was to be held that afternoon. Defendant’s attorney then tried to reach defendant but was unable as defendant was on a construction job and could not be reached. Defendant’s attorney then called the judge’s clerk twice with the message that defendant could not be found. He also notified opposing counsel of the fact. An ex parte hearing was held in defendant’s absence and the circuit court of Kane County increased support payments from *27.50 per week to *60 per week. A motion to vacate the judgment of December 13 was filed December 30, 1974, and after a hearing on January 17, 1975, the motion to vacate was denied. Defendant has taken this appeal.

¶3 The discretion of a trial court to set aside a judgment on a petition filed within 30 days after entry of judgment (under section 50(5J of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 50(5) is to be liberally exercised in order to promote justice. (Keafer v. McClelland, 23 Ill. App. 3d 1035, 1036-37; Accurate Home Supply, Inc. v. Malpede, 12 Ill. App. 3d 749, 754; Knight v. Kenilworth Insurance Co., 2 Ill. App. 3d 493, 495.) There is no longer a requirement that a meritorious defense or due diligence in asserting the defense be shown, but these are factors in determining whether the judgment should or should not be vacated in order to do substantial justice. (Village of Mundelein v. Turk, 24 Ill. App. 3d 223, 224; Becker v. Pescaglia, 24 Ill. App. 3d 410, 411.) In determining whether justice is being done it is unnecessary for the reviewing court to determine, as a matter of law, that the trial court exceeded or abused its discretion, but only resolve the question of whether justice has been served. (Engelke v. Moutell, 20 Ill. App. 3d 253, 256.) The overriding consideration is whether or not substantial justice is being done under the circumstances of the particular case and whether it is reasonable to compel the other party to try the case on its merits. People ex rel. Reid v. Adkins, 48 Ill. 2d 402, 406; Zabel v. Koran, 27 Ill. App. 3d 579.

¶4 Under the total circumstances disclosed by this record we must conclude that in order to see that substantial justice is done, it is necessary to vacate the judgment and give the defendant his day in court.

¶5 The judgment below is therefore vacated and the cause remanded to the trial court with directions to proceed in a manner consistent with this opinion.

¶6 Judgment vacated and cause remanded.

¶7 T. J. MORAN, P. J., and RECHENMACHER, J., concur.

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