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Biagi v. Gregory

DECEMBER 8, 1958.

ALDO BIAGI, APPELLEE,

v.

GRACE R. GREGORY, APPELLANT.



Appeal from the Superior Court of Cook county; the Hon. JOHN J. LUPE, Judge, presiding. Decree of June 11, 1954, reversed; decree of July 2, 1956, reversed; and cause remanded with directions.

JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 23, 1959.

This appeal involves a complaint in equity by plaintiff for a partnership accounting and a countercomplaint by defendant that the partnership be dissolved on the ground of fraud, and for an accounting. On June 11, 1954, a decree was entered in favor of plaintiff and against defendant dismissing defendant's countercomplaint; finding that the parties were partners; that the partnership was dissolved by the acts of the parties on January 31, 1951, and that an account should be taken as of that date. Based upon a master's report stating the account, the court on July 2, 1956, entered a decree finding that defendant was indebted to plaintiff in the sum of $7,387.90, plus master's fees and the other costs. Defendant appeals from this decree.

Defendant asks for a review of all the proceedings, including the findings in the first decree of June 11, 1954. Plaintiff contends that our review should be confined solely to the findings in the decree of July 2, 1956.

Plaintiff filed a motion in this court to strike certain portions of plaintiff's brief pertaining to the decree of June 11, 1954. On October 25, 1957, we entered an order finding that the decree of June 11, 1954, was a final and appealable decree and determined the rights of the parties except as to the account, and that defendant having failed to appeal from this decree this court was precluded from considering the issues therein determined. We decided that the only issues that would be considered were those pertaining to the accounting between the parties as set forth in the decree of July 2, 1956.

Subsequent to the entry of our order, the Supreme Court decided the cases of Ariola v. Nigro, 13 Ill.2d 200, and Hanley v. Hanley, 13 Ill.2d 209, interpreting section 50(2) of Chapter 110 of the Illinois Civil Practice Act, which provides:

"If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties."

In the Ariola case, it was stated that section 50(2) is applicable to a final judgment or decree rendered in a multiple claims action when the judgment or decree determines fewer than all the rights and liabilities in issue or fewer than all of the matters involved in the case. In the Hanley case an appeal was dismissed from a decree of partition which resolved the title to certain real estate because there was undisposed of the accounting between the parties and there was no express finding by the court that there was no just reason for delaying an appeal from the decree. On our own motion the parties were called in and an order was entered on each of them to file a memorandum as to whether or not on the basis of these decisions our order of October 25, 1957, should be vacated and set aside. Thereafter we concluded our order of October 25, 1957, should be vacated because the decree of June 11, 1954, determined fewer than all of the issues and section 50(2) applied. It, being procedural, was therefore retroactive. Plaintiff was ordered to file a reply to that portion of defendant's brief pertaining to the decree of June 11, 1954.

Plaintiff now contends in his brief that this court was in error in setting aside the order because by the decree of June 11, 1954, which was prior to January 1, 1956, the effective date of section 50(2), the plaintiff became vested with property rights in the partnership and the legislature had no power to make the act retroactive so as to affect his interest.

The question under the circumstances of what is a vested right, to say the least, becomes difficult to ascertain. It was aptly put in Orlicki v. McCarthy, 4 Ill.2d 342, 347, when our Supreme Court stated:

"However, the concept of `vested right' is fraught with vagaries that defy precise definition. (Merlo v. Johnston City Coal Mining Co., 258 Ill. 328; Theodosis v. Keeshin Motor Express Co., 341 Ill. App. 8.) The concept has been referred to as `something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enjoyment of the demand, or a legal exception from a demand made by another.' Beutel v. Foreman, 288 Ill. 106; People v. Lindheimer, 371 Ill. 367; Wall v. Chesapeake and Ohio Railway Co., 290 Ill. 227; Board of Education v. Nickell, 410 Ill. 98."

Since the opinion in the Ariola and Hanley cases, the Supreme Court decided Getzelman v. Koehler, 14 Ill.2d 396, which is similar to the instant case. A partition suit was involved. The action was filed in December of 1954. Various parties filed counterclaims and special defenses. The cause was referred to a master who filed his report. In October of 1956, the court ordered partition. In February 1957, the decree was entered confirming the commissioner's report. The cause was rereferred to a master for hearing on fees, expenses and an accounting. In November of 1957, the court entered a decree confirming the master's report. The defendants appealed from this decree. Plaintiffs, as in our action, contended that the decree of October 1956 was final and appealable and since the appeal was taken only from the decree of November 1957, the court had no jurisdiction to review the October 1956 decree. They cited as authority for this contention some of the decisions cited by us in our order of October 25, 1957. The court held (p. 400):

"A party, wishing to appeal from a partition decree before disposition of an accounting or other issue, should move the trial court to make an express finding in its decree that there is no just reason for delaying appeal therefrom.

"Since the decree of October 22, 1956, was not appealable at that time, it is now proper to consider ...


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