![]() That an executed agreement for Dismissal with Prejudice, followed by the filing of a formal written Dismissal with Prejudice with the Clerk, cannot be set aside over the objection of defendant That the affidavit of merits is insufficient in law Robinson in support of her motion to vacate is insufficient in that it does not set forth facts showing any mistake either on the part of herself or of her then attorneys of record In opposition to plaintiff's motion, defendant in the trial court urged the following grounds: Wenke, executed, filed and caused to be entered the Dismissal with Prejudice of the within action." Wenke, that they accepted a draft in the sum of $600.00 tendered in behalf of the defendant at the time that the said attorneys, C. Kanne, Jr., of the facts surrounding her cause of action against the defendants and has been advised that her claim is reasonably worth a sum substantially in excess of $600.00 that affiant has been informed by her former attorneys, C. "That affiant has fully informed her present attorney, Frank J. Wenke (her then attorneys) to dismiss, compromise or settle said action for any sum or at all that affiant did not at any time sign any release of the claim which constitutes the cause of action against the defendant that affiant did not at any time authorize the acceptance of any check, or endorse any check in settlement of her claim as set forth in her lawsuit. In her foregoing affidavit filed in support of her motion plaintiff averred in part as follows: On September 10, 1952, plaintiff, through her present attorney, filed her "Notice of Motion to Vacate and Set Aside Dismissal with Prejudice and to Restore Case to Trial Calendar." The motion was supported by the affidavit of plaintiff and set forth that the motion "will be made under the provisions of Section 473, Code of Civil Procedure, on the grounds that the said Dismissal With Prejudice was signed, filed and entered by mistake, without any authority from the plaintiff, as will appear from her affidavit." Wenke, and notice thereof was duly served upon the attorneys for defendant. Kanne, Jr., was substituted by plaintiff as her attorney of record in place of C. Ransom Samuelson, and on the same day caused the dismissal with prejudice to be filed of record in said cause with the county clerk. Wenke, attorneys of record for plaintiff, a draft in the sum of $600, payable to plaintiff, Nell S. On or about the 6th day of June, 1952, defendant's attorneys forwarded to C. Thereafter, and on or about the 4th day of June, 1952, plaintiff's then attorneys forwarded to defendant's attorneys a dismissal with prejudice, with a letter authorizing the filing of said dismissal upon receiving a draft in the sum of $600 in favor of plaintiff and her attorneys. Following such negotiations between counsel for the respective parties, an oral agreement was entered into whereby plaintiff's then attorneys accepted the sum of $600 by way of compromise and in full settlement of her claim, and said attorneys further agreed to dismiss said personal injury action with prejudice. Wanzer & Litwin, his attorneys of record.Īccording to the affidavit of Attorney Litwin, representing defendant, the original attorneys for plaintiff commenced negotiations with defendant's counsel looking toward a compromise and settlement of plaintiff's claim. ![]() Defendant filed an answer to plaintiff's complaint through Messrs. Epitomizing the factual situation as presented in the aforesaid affidavits, it appears that plaintiff herein, by and through her attorneys of record, filed an action against defendant, Albert Edward Hiles, to recover damages for personal injuries allegedly suffered as a result of the claimed negligence of defendant in the operation by him of an automobile. Litwin, one of the attorneys for defendant. ![]() ![]() Upon the hearing of said motion, the only facts presented were those contained in the affidavits of plaintiff, Nell S. Plaintiff's motion for such order was filed some two months and four days after the aforesaid dismissal with prejudice was filed. This is an appeal by defendant, Albert Edward Hiles, from an order of the trial court vacating and setting aside a dismissal with prejudice and restoring the cause to the calendar for trial.
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