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Weaver v. Bolton

JULY 9, 1965.

LENORA P. WEAVER, PLAINTIFF-APPELLANT,

v.

JURL DELBERT BOLTON AND THOMAS A. ANDREW, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 17th Judicial Circuit, of Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding. Reversed and remanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This suit arose out of injuries sustained by the plaintiff, Lenora P. Weaver, as a result of an accident involving three cars: that of the plaintiff, the defendant, Jurl Delbert Bolton, and the defendant, Thomas A. Andrew. The jury returned two separate verdicts in favor of the plaintiff; one against the defendant, Bolton, in the sum of $20,000, and the other against the defendant, Andrew, in the sum of $10,000. The trial court entered separate judgments on these verdicts in the respective amounts returned by the jury.

The plaintiff had also sued the Guisseppi Verdi Society of Rockford under the Dram Shop Act charging that the club had caused the intoxication of the defendant, Bolton. Prior to the trial of the case at bar, the plaintiff settled the dramshop suit and received $8,000 for a covenant not to sue. It is admitted that all parties were aware of this settlement — at least by the time of the trial of this case.

The defendant, Andrew, filed a post-trial motion seeking relief from the verdict and judgment as to him but therein made no reference to the dramshop settlement. After the trial court denied the post-trial motion and after more than thirty days had elapsed from the date the separate judgments were entered on the verdicts, the defendant, Andrew, filed a petition which, as finally amended, prayed for credit on the judgment against him in the amount of $8,000, being the sum received by the plaintiff from the dramshop suit settlement. In this petition the defendant, Andrew, for the first time advised the trial court of the settlement received by the plaintiff from the dramshop settlement. The trial court ultimately entered an order crediting said $8,000 payment on the $10,000 judgment against the defendant, Andrew.

No appeal was taken by either of the defendants from the respective judgments entered against them, the sole appeal being that of the plaintiff from the order crediting said $8,000 on the judgment against the defendant, Andrew. The plaintiff raises three principal contentions:

(1) That defendant's petition was a petition under Section 72 of the Civil Practice Act and should have been dismissed as being based upon facts known to the defendant prior to judgment;

(2) That the order on the petition was "stillborn" in that the defendant offered no proof to sustain the allegations of his petition; and

(3) That the $8,000 payment from the dramshop settlement was based upon the intoxication and negligence of Bolton and the injuries resulting therefrom, and not upon the acts of Andrew and the injuries resulting from his conduct.

Andrew is the only defendant involved in this appeal, and henceforth herein we will refer to him as "defendant."

As to the first contention, the defendant suggests that his petition is, in effect, a motion filed within thirty days after judgment. This argument is based upon the position that a motion filed within thirty days after the denial of a post-trial motion for judgment notwithstanding the verdict and for other relief, is a motion made within thirty days after final judgment. Under this contention, the date of the entry of the order denying the post-trial motion, rather than the date of the entry of the original judgment, governs with reference to the finality of judgment as prescribed in sections 1, 2 and 3 of an Act in relation to final judgments. (Ill Rev Stats 1963, c 77, pars 82, 83 and 84.)

Suffice it to say, that neither the cases cited by the defendant nor the logic employed to arrive at this conclusion support his contention. The post-trial motion filed within thirty days after final judgment and heard within said period or thereafter, does not give rise to the right to file successive motions made within thirty days after each subsequent ruling thereon. The authority of the trial court to alter its own judgments is a question of jurisdiction or power and not a question of practice or procedure. The Civil Practice Act does not purport to broaden or alter the jurisdiction of the trial court after final judgment or decree.

The jurisdiction or power of the trial court to modify, set aside or vacate its final judgment or order is governed by sections 1 through 3 of an Act in relation to Judgments, supra. Under these provisions, a final judgment may be modified or vacated by a motion filed within thirty days after its rendition to the same extent it could have been modified under prior law at the same term. (Par 83.) After the expiration of thirty days, a final judgment may be modified, set aside or vacated to the same extent and by the same modes of proceeding as were previously available after the expiration of the term. (Par 84.) Trupp v. First Englewood State Bank of Chicago, 307 Ill. App. 258, 265, 266, 30 N.E.2d 198 (1st Dist 1940). The various modes of proceeding after the expiration of thirty days are now combined in one simple remedy under section 72 of the Civil Practice Act. Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294 (1960).

It cannot seriously be contended that the separate judgments entered by the court on the verdicts, was not an absolute disposition of the case, or was not "final in its nature" as provided in section 82 of the Judgments Act. Nor is there anything in this Act to justify the assumption that one may file a motion to modify a judgment within thirty days after the court's ruling on a previous motion directed to the modification of the same judgment. Carried to its illogical conclusion, this might continue ad infinitum. The fact that a post-trial motion filed within thirty days stays the execution or suspends the operation of a final judgment, and that the appeal time does not begin to run until the motion is disposed of, does not alter the final nature of the judgment or the time limitation prescribed in the Judgments Act.

The defendant suggests that Calumet Fed. Sav. & Loan Ass'n of Chicago v. Markman, 50 Ill. App.2d 430, 200 N.E.2d 419 (1st Dist 1964) holds to the contrary and is controlling here. In that case the court based its holding, however, on the fact that the foreclosure decree was not a final and appealable order; and that the order approving the master's report was the final order in a foreclosure suit. There can be no question in the case at bar that the separate judgments entered by the court on the ...


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