Can the Defendants File a Motion to Vacate a Default Judgement More Than 30 Days After It Was Given ?
In Gruss v. Beverley, 201 Ill. App. 3d 502, 559 N.E.2d 135, 147 Ill. Dec. 135 (1990), the trial court entered an order of default against the defendants on October 26, 1988.
A prove-up hearing was set for November 18, 1988.
After neither defendants nor their counsel appeared at the prove-up, the trial court entered judgment in the plaintiff's favor.
On November 23 the defendants filed a motion to vacate the October 26 order of default.
On December 27 the defendants filed an amended motion to vacate the November 18 default judgment.
After the plaintiff argued the December 27 amended motion to vacate was brought more than 30 days after the November 18 default judgment, the trial court said it would treat the amended motion to vacate as a section 2-1401 petition. Gruss, 201 Ill. App. 3d at 504.
In finding the trial court did not abuse its discretion in treating the amended December 27 motion as a section 2-1401 petition, this court noted no explanation was offered for the time lapse between the entry of the judgment on November 18 and the filing of the amended motion to vacate default and judgment on December 27. Gruss, 201 Ill. App. 3d at 507.
The court noted that although the defendant clearly knew about the entry of the November 18 judgment, the amended motion to vacate the judgment was not filed within 30 days of its entry. Gruss, 201 Ill. App. 3d at 507.
The court held that "[i]f defendants' motion had been filed by December 18, the provisions of section 2-1301 would have permitted the court to vacate the judgment on such terms and conditions as it elected to impose." Gruss, 201 Ill. App. 3d at 507.
Because defendants' motion was filed 10 days after the expiration of the 30-day period, however, it was properly considered under section 2-1401. Gruss, 201 Ill. App. 3d at 507.