Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Affirmed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The case at bar in which Joseph Richichi and Adalbert Bielski are the plaintiffs and the City of Chicago is the defendant grew out of a suit in which Richichi was the plaintiff and Bielski was the defendant.
Richichi had sued Bielski for serious personal injuries suffered by him in 1950 when he was arrested by Bielski, a police officer of the City of Chicago. A judgment for $40,000 was returned in his favor in 1957. A new trial was granted upon the representation of the Corporation Counsel of the City, who had represented Bielski from the time the suit was commenced in 1952, that new evidence had been discovered concerning Richichi's injuries. The order granting the new trial was subsequently vacated and the judgment reinstated.
Execution was taken out but it was returned unsatisfied. Citation proceedings were brought, and in 1959, in open court, Bielski was ordered to turn over to Richichi $1.01, which was the only money he had on his person at that time. Later in the same year, Bielski was found to be without assets and the court ordered him to assign to Richichi his statutory right to indemnity from the City under section 1-15 of the Revised City and Villages Act (Ill Rev Stats 1957, c 24, § 1-15). The assignment was executed, and the present case, started in December 1959, is the action instituted by Richichi on this instrument. The prayer in Richichi's complaint was for a declaratory judgment establishing Bielski's right to indemnity from the City and for judgment for the whole amount in favor of Richichi.
The City, in 1960, filed a motion to dismiss the case on the ground that the order, which reinstated the judgment, was void for want of jurisdiction. After extensive argument and the submission of briefs, the motion was denied. The City thereupon answered Richichi's complaint denying the allegations therein and reasserting its contention that the order, holding the judgment to be in full force and effect, was void.
In 1961 Bielski was granted leave to join in Richichi's suit against the City as an additional party-plaintiff and to add a count of his own to Richichi's complaint. A jury trial in 1962 resulted in a verdict for the plaintiffs and the jury returned a special interrogatory finding that Bielski's actions did not constitute wilful misconduct. Judgment was entered for Richichi against the City for $40,000, plus interest and costs. It is from this judgment that the City appeals.
The issues presented in the appeal are (1) whether the order vacating the new trial order was void for lack of jurisdiction; (2) whether the assignment of Bielski's indemnification rights enabled Richichi to bring suit against the City for the entire amount of the former judgment; (3) whether Bielski was guilty of wilful misconduct as a matter of law, and (4) whether the City received a fair trial.
The City contends that the order granting a new trial was a final order and the court lacked jurisdiction to vacate it a year after it was entered. This is a misconception of the nature of a new trial order, perhaps derived from the fact that a new trial order is given a tentative finality for appeal purposes by section 77 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 77). However, this "finality" is conditioned upon leave to appeal being allowed by a court of review; the order is not final in the sense of terminating the jurisdiction of the trial court. To be final in this sense the judgment or order must "terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment." The Village of Niles v. Szczesny, 13 Ill.2d 45, 147 N.E.2d 371. In Kavanaugh v. Washburn, 387 Ill. 204, 56 N.E.2d 420, the court discussed the nature of the finality accorded by statute to a new trial order and decided that it was not a truly final order:
"The very purpose of an order allowing a motion for a new trial is to set aside the verdict of the jury and to place the parties in the same position they occupied before the trial. Thus, instead of being a step leading directly to a final judgment, it is the reverse. It places the whole matter back on the trial calendar for another trial. . . .
". . . "The more reasonable construction, and the one which makes the statute more readily applied, is that the legislature intended to extend the right of appeal to an order granting a new trial under the conditions specified in section 77, but that it did not intend by the use of the word `final' to thereby clothe such an order with all the finality that is given judgments or decrees which fix the rights of the parties on the merits."
The new trial order in the present case was not a final judgment. It did not settle the merits of the case, terminate the litigation between the parties or relieve the court of its jurisdiction over the subject matter.
An interlocutory order may be modified or vacated at any time. Shaw v. Dorris, 290 Ill. 196, 124 N.E. 796; Skolnik v. Susco Production, 349 Ill. App. 402, 111 N.E.2d 180; Kelly v. Marks, 267 Ill. App. 199. "Apart from statute, an interlocutory order may be amended or vacated after the term at which it was made, if no final judgment or order has put the case out of court . . ." 60 CJS, Motions and Orders, sec 62c(3), p 70. As stated in 23 ILP, Judgments, sec 163: "The rule against amending or vacating a judgment after the expiration of the statutory period has no application to interlocutory judgments, and such judgments may be opened, amended, or vacated at any time while the proceedings remain in fieri, and before the final judgment."
It is of no moment that the judge to whom the case was assigned for trial vacated the new trial order entered by the judge who presided at the first trial. A trial judge is not bound by the prior order of another judge. He has the right to review the prior order if in his judgment it was erroneous and he has the duty to do so if changed facts or circumstances make the prior order unjust. Shaw v. Dorris, 290 Ill. 196, 124 N.E. 796; Montgomery Ward & Co. v. Retail, Wholesale & Department Store Employees, 348 Ill. App. 198, 108 N.E.2d 784; Mater v. Silver Cross Hospital, 285 Ill. App. 437, 2 N.E.2d 138. In this case changed circumstances did more than make it advisable for the second trial judge to review the order of the first. The new trial had been granted Bielski because there was said to be newly discovered evidence showing that Richichi had suffered brain damage in an automobile accident between the time he was injured by Bielski and ...