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Harris Trust & Sav. Bank v. Briskin Mfg. Co.

JULY 14, 1965.

HARRIS TRUST AND SAVINGS BANK, A BANKING CORPORATION, AS EXECUTOR OF THE ESTATE OF MORAY M. BRISKIN, DECEASED, PLAINTIFF,

v.

BRISKIN MANUFACTURING COMPANY, A CORPORATION, AND LESTER I. BRISKIN, AS PURPORTED TRUSTEE UNDER A PURPORTED TRUST AGREEMENT ALLEGED TO HAVE BEEN EXECUTED BY MORAY M. BRISKIN, DECEASED, DEFENDANTS-APPELLEES, JUNE H. BRISKIN, AS GUARDIAN OF THE ESTATE OF WILLIAM H. BRISKIN, A MINOR, INTERVENING DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, County Department, Chancery Division; the Hon. DANIEL A. COVELLI, Judge, presiding. Appeal and cross appeal dismissed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT AS MODIFIED ON DENIAL OF APPELLANT'S PETITION FOR REHEARING AND APPELLEE'S PETITION FOR MODIFICATION.

Rehearing denied and opinion modified September 24, 1965.

In litigation between an executor and an inter vivos trustee over trust assets, June H. Briskin was permitted to intervene in her individual capacity and as Guardian of the Estate of her son, William H. Briskin, a minor. *fn1 Subsequently, on her own petition and after due notice, Mrs. Briskin, individually, was dismissed as an intervening party defendant. At that same hearing, on the oral motion of defendants and without notice, the court appointed Emanuel Morris guardian ad litem for William Briskin. June Briskin as Guardian objected to that part of the court's order and has taken this appeal therefrom.

We were advised on oral argument by counsel for the defendants that Mrs. Briskin as Guardian has not been excluded from the proceedings in the trial court and that she is expected to continue taking part therein until their termination.

The defendants and the guardian ad litem have moved for dismissal of the appeal on the ground that the order in question is not final and appealable.

The parties have argued the applicability of Section 50(2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 50(2)), and its proper interpretation assuming it to be relevant. However, that section applies only to a judgment, order or decree final in character, to which, under certain circumstances, an additional finding must be added to render it "final" for purposes of appeal. We must, therefore, first decide whether or not an order appointing a guardian ad litem falls within the category of a "final order, judgment or decree" regardless of its failure to meet the additional conditions of section 50(2). We think it does not. Under this circumstance, even if there were a trial court finding or recital of the "appeal formula" provided by section 50(2), it could not render appealable an order which is not final in its character apart from the special finding. Veach v. Great Atlantic & Pacific Tea Co., 22 Ill. App.2d 179, 180-183, 159 N.E.2d 833. See also Cunningham v. Brown, 22 Ill.2d 23, 25, 174 N.E.2d 153.

Under the Illinois constitution as it existed prior to January 1, 1964 the only source of authority for Appellate Court jurisdiction was found in Article VI, Section 11 which gave the General Assembly the power to create such courts and to provide for the prosecution of appeals thereto.

In the exercise of this authority the legislature created Appellate Courts and designated that they should have jurisdiction over appeals from "final judgments, orders or decrees" of the Circuit and certain other courts. Ill Rev Stats 1963, c 37, § 32. The same quoted term was used in the Civil Practice Act provision relating to appeals to the Appellate Courts. Ch 110, § 77(1). The constitutional legislative power was also exercised through other statutory enactments to provide for various types of interlocutory appeals with which we are not here concerned. (Ch 110, §§ 77 and 78; repealed as of January 1, 1964 and superseded by Supreme Court Rules 30 and 31.)

With the amended Article VI, effective January 1, 1964, this court now traces its existence and authority direct to the constitution. Art VI, §§ 6 and 7. Our appellate jurisdiction (with exceptions not here relevant), expressly set forth in section 7, is over "appeals from final judgments of a Circuit Court." The same section also states: "The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of the Circuit Court."

Consistent with this constitutional delineation the statute (ch 37, § 32.1, effective January 1, 1964) has been amended to read:

In all cases, other than those appealable directly to the Supreme Court as provided by Section 5 of Article VI of the Constitution or by rule of the Supreme Court, appeals from final judgments of a circuit court lie as a matter of right to the appellate court. . . .

The Supreme Court has acted under this rule-making power and has authorized appeals from orders granting new trials, and interlocutory appeals concerning injunctions and receivers. Supreme Court Rules 30 and 31.

We return therefore to section 50(2) of the Practice Act and find that despite its use of the term "final order, judgment or decree" we must concern ourselves with determining only whether the appointment of a guardian ad litem is a "final judgment" (again, without giving consideration to the "appeal formula" provided by that section).

We have been referred to no case directly in point and we know of none. The appellant argues that the effect of the order in question is in no sense interlocutory, and that it is collateral in its nature, thus justifying appeal by analogy to cases (decided prior to enactment of section 50(2)) holding orders appealable under other factual situations. She cites: Central Republic Bank & Trust Co. v. Connery, 273 Ill. App. 433, 443-445 (fixing fees for a receiver and his attorney and directing the payment thereof); Sebree v. Sebree, 293 Ill. 228, 233, 127 N.E. 392 (setting aside a table of heirship and finding that the petitioner was decedent's widow); Wyman v. Hageman, 318 Ill. 64, 73, 148 N.E. 852 (directing restoration of a lost master's deed, such relief not being a final ...


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