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Cook v. Burnette6/26/2003
s:
"The notice [as required by section 2-604] shall be captioned with the case name and number and shall be directed to the party. It shall state that a pleading seeking new or additional relief against him has been filed and that a judgment by default may be taken against him for the new or additional relief unless he files an answer or otherwise files an appearance * within 30 days after service *." 134 Ill. 2d R. 105.
As the banks note, Rule 105 was designed to prevent a litigant from obtaining new or additional relief without giving the defaulted party a renewed opportunity to appear and defend. See Palatine Savings & Loan Ass'n v. National Bank & Trust Co. of Sycamore, 80 Ill. App. 3d 437, 440 (1980), citing Grover v. Franks, 27 Ill. App. 3d 900 (1975). As such, in cases of default, a court that grants an award in excess of the ad damnum without prior notice to the defendant exceeds its authority, and that portion of the decree in excess of the ad damnum is void. See Dils v. City of Chicago , 62 Ill. App. 3d 474, 482 (1978) (the law is well settled that a party has the right to assume that the relief granted on a default will not exceed or substantially differ from that asked for in the complaint, as "cases have uniformly held that in cases of default the trial court in granting an award in excess of the ad damnum exceeds its authority"); Gore, 248 Ill. App. 3d at 449.
In the present case, the ad damnum clauses for both counts in the complaint "pra judgment on behalf of the next-of-kin, against defendant, EMMA BURNETTE, in a sum of money in excess of THIRTY THOUSAND DOLLARS ($30,000.00), plus costs," but did not request money or other judgment against the banks. Moreover, the record reveals that the plaintiff did not amend the complaint to request any monetary relief from the banks and did not comply with Rule 105. Therefore, the banks conclude, the $800,000 default judgment entered against them is void, and the March 16, 2000, order vacating that judgment should be affirmed.
During argument of the plaintiff's section 2-615 motions to dismiss the banks' respective amended petitions to vacate the $800,000 defaults, Judge Varga commented:
"You need a wherefore clause to say who you want to collect against. You didn't do it. It is not there * * *. So that judgment is void as to these two defendants. It's simple, it's clear, and it's black and white to me *. They were never notified, told that a dime was going to come from them *. If you want to tag some for dollars, you have to put the person or entity's name in the wherefore clause."
Such sentiment, we find, accurately reflects the rigor that Supreme Court Rule 105 adds to the construction of section 2-604. For even finding, as we do, that the plaintiff is correct in stating that the purpose of section 2-604 is simply to put parties on notice of the relief being sought against them, in order for that notice to be proper as to new or additional defaulted parties, the plaintiff also must comply fully with the strict notice requirements of Rule 105.
We also find the good majority of the cases plaintiff cites in his brief involve only the sufficiency of the allegations within the complaint (Johnson v. Illini Mutual Insurance Co., 18 Ill. App. 2d 211 (1958); People ex rel. Scott v. College Hills Corp., 91 Ill. 2d 138 (1982); Adcock v. Brakegate, Ltd., 164 Ill. 2d 54 (1994)), or make no mention of the complete failure of a plaintiff to pray for any relief whatsoever against a defendant (Klein v. Steel City National Bank, 212 Ill. App. 3d 629 (1991); Charles v. Gore, 248 Ill. App. 3d 441 (1993); Joseph A. Thorsen Co. v. Evans, 82 Ill. App. 3d 1119 (1980)). Moreover, Wo
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