Appeal from the Superior Court of Cook county; the Hon. JOHN
A. SBARBARO, Judge, presiding. Affirmed.
PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 28, 1960.
This is an appeal by the plaintiff from an adverse ruling in an action brought for a declaratory judgment that defendants owed a duty to protect plaintiff's property from any damage which might result from excavations made on defendant's property and for an injunction to restrain defendants from excavating until assurances of such protection were given. The complaint was filed August 28, 1956, alleging that plaintiff and defendants were owners of adjoining parcels of land; that plaintiff's land was improved with a 3-story and part 4-story building; that defendants owned land on Lake Shore Drive and Division Street on which were two 3-story buildings; that the lands adjoined; that defendant Code acquired her property in December, 1955, and planned to erect a 24-story building; that she notified plaintiff that she intended to excavate and advised plaintiff to take necessary measures to protect its property. Answer was filed on August 30, 1956, and on August 31, 1956, defendant moved that the cause be set for immediate hearing. A proceeding was had on that date and Judge Epstein, after arguments of counsel, entered an order in the Superior Court of Cook County enabling the defendant to proceed with the excavating and reserving jurisdiction for the purpose of determining the issues and the rights of the parties between themselves as to such costs of shoring up and underpinning plaintiff's property. The work was completed on or about February 5, 1957. On August 21, 1957, plaintiff filed its motion to dismiss the action voluntarily, pursuant to section 52 of the Illinois Civil Practice Act. An order was entered by Judge Sbarbaro dismissing the complaint on September 20, 1957. On September 30, 1957, defendant moved to vacate the order of dismissal and on October 23, 1957, the court vacated said order and plaintiff filed a new motion to dismiss based on the theory that the enactment of sections 10 and 11 of the Illinois Revised Statutes 1959, Chap. 70, made the questions involved in the controversy moot. On November 5, 1957, an order was entered granting leave to La Salle National Bank & Trust Co., as trustee, to become an additional party defendant and to file instanter a petition of said defendant and of defendant Code to recover the monies they had advanced to shore up plaintiff's building. On November 19, 1957, the court again denied plaintiff's motion to dismiss. On November 5, 1958, at the close of the trial of all the issues, the court entered an order in which it found that it was plaintiff's duty to shore up its own building and rendered a judgment against the plaintiff in the amount of $7,209.60.
Appellant contends that the lower court erred in vacating the order dismissing the complaint. The error is said to lie in the court's refusal to accept appellant's theory that there was no counterclaim or hearing in the record which would bar appellant's right to dismiss voluntarily under section 52 of the Civil Practice Act (Ill. Rev. Stat. 1959, Chap. 110, sec. 52), which provides:
"(1) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by his consent.
There was no hearing, although there had been argument of counsel and the cause was at issue. The purpose of the order was for a hearing at a future time, and if there had been a hearing, the order would have been futile.
[1-3] In order to determine whether a counterclaim was filed, we must determine the nature of a counterclaim. In Wilson v. Tromly, 404 Ill. 307, at page 309, the court said:
"The general purpose of a counterclaim has been long understood and many times defined. It differs from an answer in that a counterclaim must state a cause of action, and it seeks affirmative relief while a defense merely defeats the plaintiff's cause of action by a denial or confession and avoidance. [citing cases]. A counterclaim is an independent cause of action. [citing cases]. As involving all of these elements, a counterclaim is usually defined as a cause of action in favor of the defendant against the plaintiff, which the defendant is authorized to litigate in opposition to the plaintiff's claim in the same action. (25 Am. & Eng. Ency. of L., 568; 23 Stand. Ency. of Pl. & Pr., 585.) Since these were commonly understood elements of a counterclaim, as well as the definitions thereof, used prior to the adoption of the Civil Practice Act, we may strongly infer that the term is used in this sense in section 38 of that act, since it is not otherwise defined."
Appellee's pleading in answer to the complaint contained a cause of action and a prayer for recovery of the amount necessary for proper protection of appellant's property. It proceeded on the theory that there was no duty placed upon the excavating landowner to protect the adjoining property except the duty to use due care and to proceed in a workmanlike manner. Appellee's answer was a complete counterclaim except that it was not designated as such.
Section 38 of the Civil Practice Act of Illinois provides in pertinent part:
"(2) The counterclaim shall be a part of the answer, and shall be designated as a counterclaim. Service of process on parties already ...