The burden is on the petitioner in a section 72 petition to show diligence in asserting his defense, if any; section 72 is not intended to relieve a defendant from the consequences of his own negligence. Goldman v. Checker Taxi Co., Inc. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177; Suarez v. Yellow Cab Co. (1969), 112 Ill. App.2d 390, 251 N.E.2d 340. • 2 The record discloses that the Lydons failed to exercise diligence.
( Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348; Davis v. Chicago Transit Authority (1980), 82 Ill. App.3d 987, 403 N.E.2d 615; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App.3d 667, 360 N.E.2d 1355.) Whether the petition should be granted lies within the sound discretion of the court and depends upon the facts and equities presented. ( Davis; Chase v. Cummingham (1978), 64 Ill. App.3d 54, 381 N.E.2d 27; Lammert; Goldman v. Checker Taxi Co. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177.) However, a section 72 petition is not intended to relieve a party from the consequences of his own mistake or negligence. ( Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294.) Furthermore, this court is justified in disturbing the judgment of the trial court only when it finds that the discretion vested in the trial court has been abused.
( Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App.3d 667, 360 N.E.2d 1355.) Whether the petition should be granted lies within the sound discretion of the court and depends upon the facts and equities presented. ( Chase v. Cummingham (1978), 64 Ill. App.3d 54, 56, 381 N.E.2d 27; Lammert, 46 Ill. App.3d 667, 673; Goldman v. Checker Taxi Co. (1967), 84 Ill. App.2d 318, 320, 228 N.E.2d 177.) Thus, we are justified in disturbing the judgment of the trial court only when we find that the discretion vested in the trial court has been abused.
( Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App.3d 667, 360 N.E.2d 1355.) Whether the petition should be granted lies within the sound discretion of the court and depends upon the facts and equities presented. ( Chase v. Cummingham (1978), 64 Ill. App.3d 54, 56, 381 N.E.2d 27; Lammert, at 673; Goldman v. Checker Taxi Co. (1967), 84 Ill. App.2d 318, 320, 228 N.E.2d 177.) This court is justified in disturbing the judgment of the trial court only when it finds that the discretion vested in the trial court has been abused.
" The defendants argue that the sanction of dismissal has often been upheld, citing Hoover v. University of Chicago Hospitals (1977), 51 Ill. App.3d 263, 366 N.E.2d 925; Urmoneit v. Purves (1975), 33 Ill. App.3d 939, 338 N.E.2d 423; Bender v. Pfotenhauer (1974), 21 Ill. App.3d 127, 315 N.E.2d 137; Goldman v. Checker Taxi Co., Inc. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177, appeal denied (1967), 36 Ill.2d 631; Danforth v. Checker Taxi Co. (1969), 114 Ill. App.2d 471, 253 N.E.2d 114. In each of those cases, the conduct of the party was more egregious than in this case.
( George F. Mueller Sons, Inc. v. Ostrowski (1974), 19 Ill. App.3d 973, 313 N.E.2d 684.) We find that the trial court in the instant case abused its discretion by granting defendant's request for relief when there was no basis for it as a matter of law. (See, e.g., Goldman v. Checker Taxi Co. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177.) Accordingly, the order vacating the judgment against defendant is reversed, and the judgment is reinstated.
• 1-3 This court will reverse a section 72 determination only if there is an abuse of discretion by the trial court. ( Taylor v. City of Chicago (1975), 28 Ill. App. 962, 329 N.E.2d 506; Goldman v. Checker Taxi Co. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177.) The burden is on the petitioner to demonstrate facts warranting section 72 relief and he must demonstrate due diligence in seeking that relief. ( Diacou v. Palos StateBank (1976), 65 Ill.2d 304, 357 N.E.2d 518.) Inadvertent failure to follow the case is not a ground for relief. ( Diacou; Esczuk v. Chicago Transit Authority (1968), 39 Ill.2d 464, 236 N.E.2d 719.) Some fraud or fundamental unfairness must be shown in order to invoke the court's equitable powers. Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348.
Plaintiff next appeals from the July 6, 1976, order of the trial court dismissing amended count I, III and IV for failure to comply with a discovery order. A persistent failure to comply with a discovery order is a proper ground for dismissal. ( Goldman v. Checker Taxi Co. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177.) In the instant case the trial court, after noting that plaintiff had dismissed her own counsel, had refused court-appointed counsel and had consistently refused to comply with a discovery order and disclose an expert witness in her behalf, ordered that counts I, III and IV of her amended complaint be dismissed. Plaintiff made no request in the trial court for a continuance in order to obtain an expert witness nor did she move in the trial court for a vacatur of the July 6 order.
• 2 Section 72 provides a procedure for obtaining relief from final orders, judgments and decrees after the passing of 30 days from the date of entry thereof. A motion to vacate a default judgment pursuant to section 72 is addressed to the equitable powers of the court which entertains the petition ( Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348), and whether or not the relief prayed for should be granted lies within the sound discretion of the court, depending upon the facts and equities presented ( Goldman v. Checker Taxi Co., Inc. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177). Upon review of such a decision, an appellate court is justified in disturbing the judgment of the trial court only when it finds that the discretion vested in the trial court has been abused. George F. Mueller Sons, Inc. v. Ostrowski (1974), 19 Ill. App.3d 973, 313 N.E.2d 684.
A motion to vacate a default judgment pursuant to section 72 is addressed to the equitable powers of the court which entertains the petition ( Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348), and whether or not the relief prayed for should be granted lies within the sound discretion of the court, depending upon the facts and equities presented. ( Goldman v. Checker Taxi Co. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177.) Upon review of the decision, an appellate court is justified in disturbing the judgment of the trial court only when it finds that the discretion vested in the trial court has been abused. George F. Mueller Sons v. Ostrowski (1974), 19 Ill. App.3d 973, 313 N.E.2d 684.