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Central Wisconsin Motor Transp. Co. v. Levin

JANUARY 7, 1966.

CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,

v.

SAM LEVIN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is an appeal in which plaintiff asserts the trial court committed error in making the finding that "there is no just reason for delaying the enforcement or appeal of this order" under section 50(2) of the Civil Practice Act, upon the motion of the winning party and over the objection of the losing party. Plaintiff also contends that this is a single claim action, to which section 50(2) does not apply.

Plaintiff filed a one-count amended and supplemental complaint, seeking (a) specific performance, and (b) damages for the alleged breach by defendant of an agreement wherein plaintiff agreed to purchase and defendant agreed to sell a tract of land owned by defendant, intended by plaintiff for truck terminal purposes. The trial court struck the paragraphs pertaining to specific performance and transferred the issue as to damages to the law side of the case, still pending in the Circuit Court of Cook County.

The order was entered on November 30, 1964, and, in part, is as follows:

"A. All allegations in the body of plaintiff's Amended and Supplemental Complaint as further Amended pertaining to plaintiff's alleged cause of action for specific performance in equity, namely paragraphs 14, 16, 17 and 18, and all paragraphs of the prayer for relief of plaintiff's Amended and Supplemental Complaint as further Amended pertaining to relief grantable only by a court of equity, namely paragraphs (a), (b), (c), and (e), be and they are hereby stricken.

"B. Defendant shall answer or otherwise plead to the remaining portions of plaintiff's Amended and Supplemental Complaint as further Amended setting forth an alleged cause of action at law within thirty (30) days from the entry of this order.

"C. This cause be and it is hereby transferred from the equity docket to the law docket."

Subsequently, on December 11, 1964, defendant presented a motion, under oath, which requested the modification of the order of November 30, 1964, by making "a finding to the effect that there is no just reason for delaying the appeal of the order," and also dismissing "for want of equity" those paragraphs which referred to "plaintiff's alleged cause of action for specific performance of the agreement of March 4, 1959."

Defendant's motion for a modification included the following allegations:

"8. Defendant has an opportunity to sell the real estate that is the subject matter of this litigation. The consequence of the court's refusal to enter an appealable order on November 30, 1964 is that defendant cannot sell said real estate for a period of from four to seven years. Any Title Policy to be issued pursuant to said sale will be issued subject to rights of appeal in the instant case. The instant case may well not be decided in the trial court until four to seven years from this date when the action for damages is finally litigated. It is unconscionable that the title to the real estate should be unmarketable for that length of time.

"9. This court had the right and duty to enter an order upon defendant's Motion to Dismiss which would have been immediately appealable. This follows from plaintiff's (a) having based its claim upon two contracts, (b) having made claims for relief in the alternative, and (c) the order of November 30, 1964 having disposed of the action for specific performance of the first contract, but not having disposed of the action for damages on the second."

After several hearings and on February 1, 1965, the trial court, over the objection of the plaintiff, entered a modification order as requested, which modified the order of November 30, 1964, so as to include, "There is no just reason for delaying the enforcement or appeal of this order," and "by deleting the word `stricken' in paragraph A of said order and inserting the words `dismissed for want of equity' in its place." Plaintiff appeals.

Initially, plaintiff contends that "the end result of permitting a winning party, over the objection of the losing party, to secure a section 50(2) finding is to defeat the remedial purposes of the section. It drives the losing party, as in the case at bar, into the anomalous and intolerable position of appealing from an order which it contends is not appealable. Surely this is not the purpose of section 50(2)." Cases cited in support of plaintiff's theory that it is only "the losing party" who may secure such an order include Vogel v. Melish, 37 Ill. App.2d 471, 185 N.E.2d 724 (1962); Krambeer v. Canning, 33 Ill. App.2d 208, 178 N.E.2d 147 (1961); Griffin v. Board of Education, 38 Ill. App.2d 79, 186 N.E.2d 367 (1962); and Veach v. Great Atlantic & Pacific Tea Co., 22 Ill. App.2d 179, 159 N.E.2d 833 (1959).

Considering these authorities, we agree with the pronouncements made in Vogel v. Melish, 37 Ill. App.2d 471, 185 N.E.2d 724, where the court said (p 474):

"Section 50(2) was enacted for two principal purposes, (1) to discourage piecemeal appeals and (2) to remove the uncertainty as to the right and time to appeal which theretofore existed when a final judgment was entered on less than all of the matters in controversy. Ariola v. Nigro, 13 Ill.2d 200, 148 N.E.2d 787. A trial judge should keep the first of these purposes in mind when requested to make the express finding that there is no just reason for delaying appeal. As the practice has developed the certification is expected to be entered for the asking, whereas in reality it is a matter calling for the careful exercise of the court's discretion." (Emphasis supplied.)

We also agree that a special finding by the trial court, under section 50(2) of the Civil Practice Act, does not make a judgment, order or decree final, if in fact the order in question does not fall within the accepted guidelines of a final and appealable order. Griffin v. Board of Education of Chicago, 38 Ill. App.2d 79, 186 N.E.2d 781.

Despite the statements made in the cases cited, that section 50(2) was enacted to remove the uncertainty for the losing party as to the right and time to appeal when a final judgment was entered on less than all of the matters in controversy, we find no statement either in the statute or in any case cited restricting the application of section 50(2) to a motion made by the losing party. In Ariola v. Nigro, 13 Ill.2d 200, 148 N.E.2d 787 ...


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