
    Haydee Castle, d/b/a Castle Home Furnishings, Plaintiff-Appellee, v. Sterling Savings and Loan Association et al., Defendants-Appellants.
    (No. 54641;
    First District
    — November 19, 1971.
    
      Bernard M. Feldman and Alan I. Boyer, both of Chicago, for appeUants.
    Irving Goodman and Paul M. Smith, Jr., both of Chicago, for appeUee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff filed a petition under section 72 of the Civil Practice Act (IU. Rev. Stat. 1969, ch. 110, par. 72) requesting the vacature of a consent order entered on July 26,1968, dismissing the cause with prejudice, which order was based on a settlement agreement between the parties herein. The court vacated the consent order on August 5, 1969, and subsequently denied defendants’ motion to vacate the order of August 5, 1969. Defendants appeal.

The original complaint in this case was filed on August 7, 1967, against Lawn Savings and Loan Association (hereinafter Lawn) and the defendants herein, Fleetwood Management, Inc., (hereinafter Fleetwood) and Sterling Savings and Loan Association (hereinafter Sterling). It aUeged that the three defendants were wrongfully detaining plaintiff’s property which consisted of assorted apartment furnishings and that they refused to return the property upon proper demand. Defendants Fleetwood and Sterling answered, denying plaintiff’s aUegations and stating a willingness to have plaintiff take possession of any of her furnishings that they might possess. Plaintiff filed a reply denying that defendants were willing to return possession of the furnishings.

Lawn Savings failed to answer and a default judgment for $14,700.75 was entered against it on January 4, 1968. This amount represented the cost of the furnishings that plaintiff installed in ten six-flat apartment buildings allegedly owned by Lawn. The action against Fleetwood and Sterling was set for trial.

Plaintiff’s petition under section 72 in addition to stating most of the background material set forth above alleged the following: that during the trial (July 25, 1968) the court suggested that the parties determine the specific number of apartments that were owned by and under control of the defendants Fleetwood and Sterling; that Bill Smith, president of defendant Fleetwood, testified and “denied any ownership of the remaining * * * ten (10) six-flat units, but admitted that they [Fleet-wood] managed property for Lawn Savings * * * as renting agents and nothing else and that the furnishings and carpeting delivered and installed in * * * [them] ° should be paid for by Lawn Savings * * the present owners, * * that plaintiff relied on this representation and with the approval of the court had an order entered on July 26, 1968, upon the payment of $5000 to the plaintiff, dismissing Sterling and Fleetwood with prejudice; that subsequently plaintiff attempted to execute its judgment against Lawn and first learned that Lawn was in receivership; that in a healing on receiver’s petition for an injunction restraining enforcement of the judgment Lawn proved that Lawn did not own the ten six-flats in question but had entered into a “contract for Articles of Warranty Deed” with Fleetwood on May 7, 1967; “that the representation made by [Smith] the president * * * of Fleetwood * * * was a perjury, in that he definitely stated that said corporation was only managing the property for Lawn Savings * * * and nothing else, but in fact they were the contract purchasers who were operating and enjoying the benefits of the goods, * * * of the plaintiff from May 7, 1967, and at no time did * * * [Smith] indicate in his testimony that they were the contract purchasers of the ten (10) 6-flat units from Lawn Savings * * that Joseph Testa, the president of defendant Sterling Savings is the true owner of Fleetwood and that upon his direction “a substantial down payment” was made to Lawn Savings at the time the contract was executed on May 7, 1967; that if plaintiff had known Fleetwood was the contract purchaser of the property, she [w]ould never have agreed to dismiss the complaint with prejudice as to the defendants * * * upon payment of $5000”; and “[t]hat * * * [the defendants herein], perpetrated a fraud upon the court.”

Defendants filed motions to dismiss the petition alleging among other grounds that the dismissal was entered pursuant to an agreement and that therefore there was no fraud on the court; that the petition7 was not substantiated by the transcript of the aborted trial referred to in the petition; and that plaintiff did not exercise due diligence.

On August 5, 1969, the court entered the following order which in relevant part reads:

“This cause coming to be heard on set call on petition of the plaintiff to vacate the order of July 26, 1968 and defendants Sterling Savings & Loan Assn, and Fleetwood Management motions to dismiss,
The Court having heard arguments of counsel and being fully advised in the premises and having jurisdiction of the same:
It is hereby ordered that plaintiff’s petition to vacate the order of July 26, 1968 be and is allowed and said order of July 26, 1968 is vacated and set aside.”

Defendants then moved to set aside the order of August 5,1969, attaching to their motion as Exhibit A a partial transcript of the original trial for the purpose of showing tihat the witness therein did not give perjured testimony. They also alleged that the court failed to conduct a full and impartial heaiing but rather “summarily and pre-emptorily entered an order vacating the order of dismissal of July 30, 1968, [sic] contrary to all established principles of law and equity.” This motion was denied on September 26,1969.

The record and briefs disclose that the court did not rule on defendants’ motion to dismiss the section 72 petition. Instead the dismissal order of July 26,1968, was vacated. In Lake View Trust and Savings Bank v. City of Chicago, 314 Ill.App. 386 (Abst.) a comparable situation arose. Plaintiff filed a Section 72 petition to vacate an order of dismissal which occurred on a trial call after the parries had agreed that no trial be held until the disposition of a pending case in the Supreme Court. The defendant filed a motion to dismiss the petition. The motion was denied and the order of dismissal set aside. The court held: “The filing of the petition was the beginning of a new suit. When the motion to dismiss it was denied defendant had a right to answer.”

In the instant case the court should first have ruled on defendants’ motions to dismiss. If these were denied, then defendants should have been afforded the opportunity of filing an answer.

Therefore, the order of August 5, 1969, is reversed and the cause remanded with directions to rule on defendants’ motion to dismiss the section 72 petition and for further proceedings not inconsistent with this opinion.

We note that Exhibit A (a partial transcript of the original trial) was not properly before the court and could not be used to raise an issue of fact since motions to dismiss admit as true all facts properly pleaded (Nemerovski & Co. v. Barbara, 106 Ill.App.2d 466).

Reversed and remanded with directions.

ENGLISH, P. J., and STAMOS, J., concur.  