Busser, 8 Ill. App.2d 268, 283; Widicus, 26 Ill. App.2d 102, 110; see also Spencer v. American United CabAssociation (1965), 59 Ill. App.2d 165, 208 N.E.2d 118 (another section 72 case adopting the rationale of Busser and Widicus); cf. Fitschen v. Bellm Freight Lines, Inc. (1971), 131 Ill. App.2d 757, 266 N.E.2d 740 (failure to act on summons served at nearly the same time as an almost identical summons in another case held an excusable mistake, the court emphasizing that the defendant acted on the first summons and did not show indifference). Defendant also cites Becker v. Pescaglia (1974), 24 Ill. App.3d 410, 320 N.E.2d 615, another case involving a section 50(5) motion, in which a default resulted from the inadvertent failure to calendar a return day by a secretary in the office of defendant's attorney. Finding that "[u]sual procedural matters of office administration failed," the court held the defendant's failure to answer was an excusable mistake.
In an affidavit filed along with his motion to set aside the default judgment, Wickham alleged facts showing a meritorious defense. Balaco filed no counteraffidavits. Thus the statements of fact contained in Wickham's affidavit must be taken as true. ( Becker v. Pescaglia, 24 Ill. App.3d 410, 320 N.E.2d 615.) In his affidavit Wickham also asserted the failure of counsel to appear on his behalf as a reasonable excuse for not pursuing his defense.
Conduct which is excusable under section 50(5) of the Civil Practice Act up until 30 days after judgment thereafter becomes negligence sufficient to bar relief unless the defendant is not given notice of the final judgment until more than 30 days after the rendition of judgment in which case the conduct again becomes excusable. See Widicus v. Southwestern Electric Cooperative, 26 Ill. App.2d 102; Becker v. Pescaglia, 24 Ill. App.3d 410, for examples. In the instant case defendants had paid over $8000 on an $11049.
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.
Modern cases require that a just result be achieved and the court must decide whether it is just and reasonable, under the circumstances, to compel the other party to go to trial on the merits. People ex rel. Reid v. Adkins, 48 Ill.2d 402, 270 N.E.2d 841; Smith v. National Drag Racing Enterprises, Inc., 24 Ill. App.3d 91, 320 N.E.2d 43; Morning v. Morning, 9 Ill. App.3d 555, 291 N.E.2d 875; Becker v. Pescaglia, 24 Ill. App.3d 410, 320 N.E.2d 615; Patrick v. Burgess-Norton Manufacturing Company, 25 Ill. App.3d 1083, 324 N.E.2d 196. Plaintiffs' counsel submitted affidavits in support of the motion to reinstate.
Although there is no hard and fast rule, which could be applied to all situations regardless of the outcome, to determine what is just and proper ( Morning v. Morning, 9 Ill. App.3d 555, 599-60, 291 N.E.2d 875, 879; Widicus v. SouthwesternElectric Cooperative, Inc., 26 Ill. App.2d 102, 109, 167 N.E.2d 799, 803), the existence of a party's meritorious defense or his excusable neglect are factors, as is the hardships suffered by the other party in going to trial on the merits, which the court may consider in resolving whether to vacate the default. E.g., Becker v. Pescaglia, 24 Ill. App.3d 410, 411, 320 N.E.2d 615, 617; Keafer v. McClelland, 23 Ill. App.3d 1035, 1037, 321 N.E.2d 136, 137-38. • 2 Applying the above legal precepts to the instant case, we are of the opinion that the trial court erred in denying plaintiff's motion to vacate the decree of divorce.
This would not be the first time in Illinois where an attorney's secretary failed to communicate a message to her employer. (See Becker v. Pescaglia, 24 Ill. App.3d 410.) Plaintiff's attorney has stated on his oath that he did not receive any notice whatsoever until the morning of the 13th when he was engaged in trial.