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Campbell v. Joslyn Mfg. & Supply Co.

DECEMBER 15, 1965.

JACK CAMPBELL, PLAINTIFF-APPELLEE,

v.

JOSLYN MANUFACTURING AND SUPPLY COMPANY, DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLEE. JOSLYN MANUFACTURING AND SUPPLY COMPANY, DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLEE,

v.

MIDLAND CONSTRUCTORS, INC., A CORPORATION, THIRD PARTY DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the Twelfth Judicial Circuit, Will County, Circuit Division; the Hon. JAMES V. BARTLEY, Judge, presiding. Affirmed.

ALLOY, P.J.

Midland Constructors, Inc., a Corporation, as third party defendant, appeals to this court from an order denying a motion to dismiss an amended third party complaint filed on behalf of Joslyn Manufacturing and Supply Company, original defendant, and third party plaintiff. Questions raised on appeal are solely based upon the pleadings in this cause and rulings thereon.

The original action filed by Jack Campbell as plaintiff sought to recover damages for personal injury sustained when plaintiff fell from a wooden pole while he was engaged in connecting electrical wires. Plaintiff was an employee of Midland Constructors, Inc., the third party defendant. The pole from which the plaintiff fell was manufactured and supplied by the third party plaintiff and original defendant, Joslyn Manufacturing and Supply Company. The original complaint of plaintiff alleges negligence in the manufacture and treatment of the pole in question by Joslyn Manufacturing and Supply Company and failure to inspect the pole for defects prior to delivery. Joslyn Manufacturing and Supply Company denied all of the allegations of the complaint and filed a third party complaint against Midland Constructors, Inc. alleging that the negligence, if any, was active on the part of said Midland Constructors, Inc. and secondary on the part of Joslyn. The original complaint was filed on January 30, 1961. A motion to dismiss such third party complaint was filed and the motion was argued on March 29, 1961. On that date, the trial court entered an order dismissing the third party complaint but made no provision for filing of an amended third party complaint. On July 3, 1963, an order was entered granting leave to Joslyn to file an amended third party complaint against the same third party defendant, which amended third party complaint alleged that the negligence of the third party defendant was active and that that of the third party plaintiff, if any, was passive. A motion to dismiss was again made by said third party defendant which was denied by the trial court. The trial court then amended the order denying the motion to dismiss to further find that there was no just reason to delay the appeal of this question. The third party defendant, Midland Constructors, Inc., elected to stand on its motion to dismiss the amended third party complaint.

On appeal in this cause, appellant contends that the trial court committed error in granting leave to Joslyn to file the amended third party complaint for the reason that the original order of March 29, 1961, dismissing the original third party complaint without granting leave to amend constituted a conclusive adjudication of the rights of the parties as to indemnification of Joslyn and further that the court was without jurisdiction to grant leave to file an amended third party complaint more than thirty days after entry of the order dismissing the original third party complaint. Appellant also contends that the trial court erred as a matter of substantive law in refusing to grant the motion to dismiss the amended third party complaint since the original complaint and the third party complaint show on their face that if defendant-third party plaintiff Joslyn is guilty, it must be guilty of active negligence.

The first issue with which we are concerned is the propriety of the allowance of leave to file the amended third party complaint, by the trial court. It appears from the record that the order allowing the motion to dismiss on March 29, 1961, was not final in its nature. Under the provisions of section 25, chapter 110, Illinois Revised Statutes (Ill Rev Stats 1963, c 110, § 25 (2)) it is specifically provided that a third party action may be brought by filing a third party complaint. Our courts have repeatedly concluded that where a motion to dismiss a complaint is sustained, for such ruling to become final, a judgment should be entered for the defendant to such complaint which contains language showing that plaintiff was to take nothing by virtue of his action or similar conclusive language. Under Section 50(2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 50(2)), it is provided that if multiple parties or multiple claims for relief are involved in an action, any order which adjudicates fewer than all of the claims or fewer than all of the claims of the parties does not terminate the action, and is subject to revision at any time before entry of an order adjudicating the claims of all the parties.

In the case of Johnson v. City of Rockford, 26 Ill. App.2d 133, 169 N.E.2d 534, there was an order of dismissal as to the City of Rockford. The court in decreeing that such order was not final, stated (at p 137):

"Where the order merely sustains Defendant's motion to strike complaint without stating more, such order is not a final, appealable order . . ."

In Bohannon v. Ryerson & Sons, Inc., 15 Ill.2d 470, 155 N.E.2d 585, where a verdict had been rendered in favor of a third party defendant on a third party complaint, the Supreme Court held that the action involved multiple parties and was governed by Section 50(2) of the Civil Practice Act. The court stated (at p 475):

"More is here involved than an insistence upon ritualistic compliance with an empty procedural form. Nothing in the record as it now stands shows that the underlying liability of `Third Party Plaintiff' upon which their third party claims were based has been established."

The court concluded that since all claims had not been disposed of and no finding had been made that the directed verdict was appealable, the judgment was not final, and was subject to revision at any time before disposition of all claims of all parties. Similarly, in the case of Krambeer v. Canning, 36 Ill. App.2d 428, 184 N.E.2d 747, the principal defendant filed a third party complaint which was dismissed on motion of the third party defendant on May 5, 1959. An Amended third party complaint was dismissed on October 22, 1959. In November 1960, third party plaintiff moved to vacate the order of October 22, 1959, and prayed in the alternative for an order amending that order to the effect that no just cause exists for delay of the appeal. On November 18, 1960, the court entered an order that no just cause exists for delay of the appeal and the appeal was taken but the Appellate Court dismissed the appeal without prejudice for want of a final order. On November 8, 1961, the trial court amended and made final the order of October 22, 1959, by finding the issues in favor of the third party defendant and that there was no just reason for delaying the appeal. The Appellate Court held that since the principal case involved multiple claims and fewer than all of the claims were referred to in the original dismissal order, the order was not final and appealable and was 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 (citing section 50(2), ch 110, Ill Rev Stats). The court pointed out (at p 432):

"Throughout the period of time during which the third party plaintiff was asserting his claim for indemnification, this case was pending in some aspect in the Circuit Court and that court had jurisdiction to revise the order of October 22, 1959 and to make it a final judgment or order.

"Since the case had been pending all this while and no prior final order had been entered from which an appeal could have been taken, the court had jurisdiction to revise the order. . . ."

In the case before us, the appellant-third party defendant itself apparently recognized the necessity of complying with section 50(2) of the Civil Practice Act and moved to amend the order denying its motion to dismiss the amended third party complaint to show that no just cause exists for delaying the appeal. The principal case is still pending and the defendant-third party plaintiff is still asserting its claim for indemnification against third party defendant. It was obvious that no words of finality were shown in the order. There were multiple parties involved, and there was no finding in the order dismissing the initial third party complaint that there was no just reason for delaying the enforcement of the appeal. In accordance with provisions of section 50(2) of the Civil Practice Act such order was subject to revision at any time and the court retained jurisdiction and could allow the amended third party complaint to be filed. We, therefore, conclude that the allowance of the filing of the amended third party complaint was proper.

The basic question before us in this appeal is whether the action of the court in denying appellant's Motion to dismiss the amended third party complaint was justified. Appellant-third party defendant in this cause asserts that since plaintiff alleged specific acts of negligence against the original defendant (later third party plaintiff) there could be no basis for a third party complaint. The burden of such contention is substantially that plaintiff would be required to establish that defendant-third party plaintiff was guilty of active negligence before a recovery could be had against said defendant, and that, therefore, said ...


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