Appeal from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding. Order reversed with directions.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Plaintiffs Jean H. Haley and Frances Mongo were injured when the 1961 Chevrolet in which they were riding went out of control and crashed in the State of Iowa on June 10, 1961. Mrs. Haley, the owner of the car, was driving at the time, and Mrs. Mongo was a passenger. Alleging that the accident was proximately caused by defects in one of the tires, in the steering column, and in related parts, the plaintiffs filed suit against Merit Chevrolet, Inc., the dealer who had sold the car to Mrs. Haley, against General Motors, Inc., the manufacturer of the car, and against U.S. Rubber Company, the manufacturer of the tire. The complaint, as later amended, sought relief in three counts on theories of negligence, implied warranty, and express warranty. General Motors filed its answer while the other two defendants moved for dismissal. The trial court held that the two counts based on warranty theories did not state a cause of action against Merit or U.S. Rubber, and dismissed those counts as to those defendants. It further held that the negligence count was improper in form, and offered the plaintiffs leave to file a second amended negligence count. But plaintiffs elected to stand on their entire amended complaint, and Merit and U.S. Rubber were then dismissed from all three counts. The court stated in its order that there was no just reason for delaying enforcement or appeal, and this appeal followed. The only defendants before us are Merit and U.S. Rubber; the claim against General Motors remains pending in the trial court.
Initially, we are confronted with a motion filed by these two defendants to dismiss the appeal on the grounds that leave to file an amended complaint was erroneously granted by the trial court, and that therefore the subsequent order which dismissed these defendants from the amended complaint, and which is here on appeal, is a nullity. Motions by Merit and U.S. Rubber to dismiss the original complaint as against them for not stating a cause of action were granted following an ex parte hearing June 20, 1963. On August 30, 1963, the attorney for the plaintiffs moved to vacate those dismissal orders, and on September 3, 1963, filed a verified petition alleging that he was ill on June 20, 1963, that he had instructed his office to call the other side to request a continuance, and that he learned of the dismissals on August 12, 1963, a date for which depositions had been scheduled in the case. On December 30, 1963, the trial court vacated the June orders, over the contentions of Merit and of U.S. Rubber that it was too late for it to do so, and again heard argument of the cause. By orders of that date, the complaint was stricken as against Merit and U.S. Rubber, with leave granted to plaintiffs to file an amended complaint.
Defendants claim that the court was without jurisdiction to vacate the June orders because more than thirty days had elapsed since they were entered. It is true that relief from valid final orders after 30 days from the entry thereof may be had only upon petition in accordance with the provisions of § 72 of the Civil Practice Act (Ill Rev Stats c 110, § 72(1) (1963)). But this suit involves both multiple parties and multiple claims, and therefore under subsection 50(2) of the Civil Practice Act (Ill Rev Stats c 110, § 50(2) (1963)), the court may enter a final order as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. The statute further provides:
In the absence of that finding, any order, judgment, or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is 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. (Ill Rev Stats c 110, § 50(2) (1963)). (Emphasis added.)
The rights and liabilities of the third defendant in this case, General Motors, have not been adjudicated, and the June orders did not include the express finding described in the statute.
It is admitted by defendants that for this reason the June orders were neither final nor appealable, and were subject to revision. Their primary contention is that the power to revise the orders does not embrace the power to vacate them, because in drafting subsection 50(2) the Legislature eschewed the expression "set aside," which appears in other subsections of section 50, in favor of the word "revision." It is further argued that the June orders were by their nature final orders, despite the absence of the 50(2) formula, because they were dispositive of the claims against these two defendants. Finally, it is alleged that even if the court had the power to vacate the June orders, the petition filed by plaintiffs' attorney did not set forth grounds adequate to support such an order.
[3-5] By the specific language of the statute, the Legislature provided that orders such as those in this case are not final and are subject to revision. We conclude that under this language any and all portions of such orders are subject to subsequent revision by the court, and that therefore it is within the trial court's discretion to vacate the entire order. The Legislature's failure to use other language making this rule even more explicit does not require an opposite conclusion. Furthermore, we conclude that, in view of the allegations made in the petition of plaintiffs' counsel, to which no counteraffadivits were filed, the trial court did not improperly exercise his discretion in vacating the June orders. This court therefore has jurisdiction to hear this appeal.
On appeal from an order dismissing a complaint, all facts well pleaded are taken as true. The amended complaint alleges in substance the following: Mrs. Haley purchased a 1961 Chevrolet from Merit in Chicago on April 7, 1961. The car had been manufactured by General Motors, and was equipped with tires manufactured by U.S. Rubber. On June 10, 1961, Mrs. Haley was driving her automobile on Highway No. 60 in Iowa, and Mrs. Mongo was a passenger. While driving, they heard a bumping noise in the front end of the car. They stopped and looked at all of the tires, but saw no break. As they proceeded, there seemed to be a noise in the front and under the hood, and then suddenly there was a snap or clatter in the front end and the steering wheel came loose from the dashboard and dropped into the lap of the plaintiff. This caused her to lose control of the car, and it proceeded across two embankments and crashed.
Count I of the amended complaint, seeking recovery on a negligence theory, alleges that the defendants before us carelessly and negligently failed to inspect and test the tires and steering column at its attachment to the dashboard; failed to properly inspect and test the vehicle before selling it for use by the plaintiff; manufactured and sold a defective tire; failed to correct the defects in the tire and steering column when inspecting the vehicle for a 1,200 mile checkup, which checkup if properly performed would have revealed said defects; failed to replace the tire, which had a separation in the threads of approximately 10 inches high and 5 inches wide; and failed to provide a proper attachment of the steering column to the dashboard, although the defendant knew or should have known that the band which held the steering column in its place under the dashboard would be insufficient to withstand any ordinary or extraordinary stress placed upon it.
It is further alleged that it was the duty of the defendants, and each of them, to furnish the plaintiff with a vehicle which was in good working condition and free from any defects in material and workmanship; that the plaintiffs had no knowledge of the defects in the tire, steering wheel, and related parts; that while operating the vehicle the plaintiffs were in the exercise of due care and caution for their own safety and well being and the safety and well being of each other; and that the injuries of the plaintiffs were proximately caused by one or more of the defects in the vehicle.
Count II of the amended complaint is based upon an implied warranty theory, alleging that each of the defendants individually warranted, by implication, that the contents and materials in the automobile were safe and fit for its intended use, and free from any defects, and plaintiff relied upon said warranty, which was breached by each defendant by the presence of defects in the automobile.
In Count III, both plaintiffs assert a claim against Merit alone on the strength of an alleged breach of an express warranty given by Merit to Mrs. ...