Illinois Marine Towing Corp. v. Black

393 N.E.2d 707, 74 Ill. App. 3d 909, 30 Ill. Dec. 671, 1979 Ill. App. LEXIS 2827
CourtAppellate Court of Illinois
DecidedAugust 6, 1979
Docket78-423
StatusPublished
Cited by16 cases

This text of 393 N.E.2d 707 (Illinois Marine Towing Corp. v. Black) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Illinois Marine Towing Corp. v. Black, 393 N.E.2d 707, 74 Ill. App. 3d 909, 30 Ill. Dec. 671, 1979 Ill. App. LEXIS 2827 (Ill. Ct. App. 1979).

Opinion

Mr. JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Illinois Marine Towing, Seymour Miller, and Harvey Ansel filed an action in the circuit court of Cook County on October 7, 1976, against defendants, Charles Black and Seneca Enterprises, Inc. (hereinafter Seneca). When defendants did not answer by February 10, 1977, plaintiffs sought and obtained a default judgment against them. On October 17, 1977, the defendants filed a motion to vacate the default judgment pursuant to section 72 of the Civil Practice Act; this motion was denied. (Ill. Rev. Stat. 1975, ch. 110, par. 72.) A second petition, filed on January 5, 1978, was also denied. It is from this second order that the defendants appeal. We affirm.

The plaintiffs’ law suit arose from the parties formation of a corporation known as Seneca Enterprises, Inc. for “the purpose of excavating, transporting and selling sand and gravel, and to operate docks and provide docking and fleeting services.” Their three count complaint sought an accounting for profits from the corporation and the return of monies contributed by plaintiffs Miller and Ansel to Seneca as shareholders, as well as the return of or fair market value of the Lois C., an oil screw motor vessel, owned by Illinois Marine which had been wrongfully converted by defendants. The complaint was premised on the allegation that Black fraudulently induced plaintiffs into handing over this property without ever intending to share the corporation’s profits with them.

Summons was issued by the clerk of the circuit court of Cook County on October 7,1976, and served upon defendant Black by personal service and upon Seneca by personal service upon Black as its agent, by a sheriff of La Salle County, Illinois. The defendants failed to file an appearance or otherwise plead within the requisite 30 days. (Ill. Rev. Stat. 1975, ch. 110A, par. 101(d).) On February 10, 1977, over four months after the filing of their complaint, the plaintiffs obtained a default judgment. On March 24,1977, after hearing testimony concerning damages, a judgment order was entered in favor of plaintiffs in the amount of *249,500. On September 2, 1977, defendants were served with a citation to discover assets. Defendant Black appeared before the court on September 22, 1977, at which time the citation proceeding was continued until October 4,1977. On October 17,1977, the defendants filed a section 72 petition to set aside the default judgment. This petition was denied and the defendants did not appeal from that order. On January 5, 1978, the defendants filed a second section 72 petition to again attempt to vacate the default judgment. This petition was also denied and it is from this order that the defendants now appeal.

The defendants initially contend that the trial court’s award of *249,500 to the plaintiffs was erroneous because they were given no opportunity to be heard on the issue of damages and because the plaintiffs failed to bring forth any evidence to support their claim for damages. It is the defendants’ view that these errors required the trial court to vacate the default judgment. This argument was not raised in defendants’ second section 72 petition out of which this appeal arises. Furthermore, the record on appeal contains only the pleadings filed in this matter; it does not include a transcript of the original damages hearing or a transcript of either section 72 hearing. It is well established that a party raising an issue on appeal must present an adequate record (In re Shannon (1977), 45 Ill. App. 3d 876, 360 N.E.2d 433; Amalgamated Trust & Savings Bank v. Conrad Kern Co. (1975), 34 Ill. App. 3d 430, 340 N.E.2d 36), and that a matter may not be raised for the first time on appeal. (Tobler Trucking Co. v. Industrial Com. (1967), 37 Ill. 2d 341, 226 N.E.2d 601; Hayes v. Preferred Risk Mutual Insurance Co. (1978), 66 Ill. App. 3d 112, 383 N.E.2d 669; McKinnon v. Yellow Cab Co. (1975), 31 Ill. App. 3d 316, 333 N.E.2d 659.) As the defendants have failed to afford this court these transcripts, we are unable to ascertain whether the defendants did raise this argument in the trial court. Under this circumstance, the question may not be argued for the first time on appeal. (Interstate Printing Co. v. Callahan (1974), 18 Ill. App. 3d 930, 310 N.E.2d 786.) As such, we will assume that the award of damages was correct. Amalgamated Trust & Savings Bank; G. Brock Stewart, Inc. v. Valenti (1976), 43 Ill. App. 3d 673, 357 N.E.2d 180.

It remains to be considered whether the trial court abused its authority by denying the defendants’ second section 72 petition to vacate judgment. This court has not been afforded a transcript of either section 72 hearing as already noted. Consequently, our review will be limited to a consideration of whether the petition was substantially insufficient at law. Section 72 provides a procedure by which final orders, judgments, and decrees may be vacated after 30 days. (Ill. Rev. Stat. 1975, ch. 110, par. 72(1); Calabrese v. Hatlen Heights Sewer & Water Co. (1966), 34 Ill. 2d 483, 216 N.E.2d 145.) It is designed to bring to the attention of the trial court any facts which, if known to the court at the time judgment was entered, would have altered the judgment. (Putnam v. People (1951), 408 Ill. 582, 97 N.E.2d 841, cert. denied (1953), 344 U.S. 923, 97 L. Ed. 711, 73 S. Ct. 389; David Plywood & Lumber Co. v. Sloan (1977), 52 Ill. App. 3d 71, 367 N.E.2d 101; Akers v. Christen (1973), 11 Ill. App. 3d 369, 296 N.E.2d 774.) Where a default judgment has been entered, a section 72 petition invokes the equitable powers of the court to insure that the default does not offend the dictates of justice or fairness. Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609; 190 N.E.2d 348, Eastman Kodak Co. v. Guasti (1979), 68 Ill. App. 3d 484, 386 N.E.2d 291.

In order to obtain relief under a section 72 petition, as the court in Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 386 N.E.2d 284, recently noted, a party must demonstrate (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the trial court in the original action; (3) that through no fault of his own an error of fact was made or a defense or claim was not raised; and (4) due diligence in filing the section 72 petition. The petitioner must set forth sufficient factual allegations in support of each of these elements in order to prevail. While a liberal construction is given to the petition to prevent an unjust result (Electrical Wholesalers, Inc. v. Silverstein (1977), 47 Ill. App.

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393 N.E.2d 707, 74 Ill. App. 3d 909, 30 Ill. Dec. 671, 1979 Ill. App. LEXIS 2827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-marine-towing-corp-v-black-illappct-1979.