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Peach v. Peach

JULY 6, 1966.




Appeal from the Circuit Court of Lee County; the Hon. ROBERT L. BRACKEN, Judge, presiding. Judgment affirmed.


Eva Peach, as conservator of Leo Peach, her son, filed suit against Lester Peach, another son, Gonigam-Bass-Hill, Inc., and International Harvester Company, defendants, to recover for certain injuries sustained by Leo Peach. The injuries occurred when a falling bale of hay struck Leo Peach on the head while he was working near a grain elevator which was being used on the Lester Peach farm. The other two defendants were the manufacturer and seller of the elevator in question.

The injury occurred on July 8, 1960, and this suit was not commenced until November 27, 1962 — more than two years after the date of the injury. The plaintiff was not appointed conservator for Leo Peach until October 23, 1962.

The defendants filed motions to dismiss the amended complaint because "at no time during the period from July 8, 1960 to July 8, 1962, was Leo Peach within the age of 21 years or insane or mentally ill or imprisoned on a criminal charge so as to toll the statute of limitations in accordance with the provisions of Chapter 83, Illinois Revised Statutes, section 22." In its order overruling these motions, the trial court stated:

"In the original complaint and in the amended complaint the plaintiff alleges that `Leo Peach, on July 8, 1960, and for many months prior thereto, was by reason of mental deficiency an incompetent person' and that on July 8, 1960, the plaintiff was injured by detailed negligent acts of the defendants . . . .

"The plaintiff has assumed the burden of proof in this case — that the plaintiff was incompetent on the day of the accident and that, of course, he must prove, together with the other allegations in the complaint before he can hope to effect a recovery. He has, however, stated a cause of action and all motions to dismiss are overruled."

The trial court ordered that the issue of the mental illness of Leo Peach be severed and tried separately. This single issue was tried before a jury which found for the plaintiff by affirmatively answering the special interrogatory — "Was Leo Peach from the period of time beginning July 8, 1960 up to and including July 9, 1962, an incompetent person?" The trial court set aside the finding of the jury on the special interrogatory as being "against the manifest weight of the evidence," and then granted defendants' motions to dismiss the complaint. The order of dismissal read in part:

"As hereinbefore noted the Court overruled the defendants' motions to dismiss the complaint on the theory that if the plaintiff was incompetent between the dates of July 8, 1960 and July 9, 1962, and could prove it, it would toll the Statute of Limitations.


"In the opinion of the Court the plaintiff has failed to make such proof and the Court so finds. The verdict is set aside and the Court overrules itself with reference to the former motions to dismiss. It now grants the motions to dismiss."

Plaintiff filed neither a motion for new trial of the issue of the incompetency of Leo Peach, nor a motion to vacate the aforesaid order dismissing the complaint, but rather, filed notice of appeal from the order of dismissal on the ground that the special finding of the jury was not against the manifest weight of the evidence.

At the outset we must turn to the defendants' contention that the order of dismissal was not a final order, and, hence, this appeal will not lie. In this regard, defendants argue that no judgment was entered for defendants containing the formal pronouncements traditional to final judgments, such as, "the plaintiff take nothing by virtue of this action and that the defendants go hence without day." They also urge that the trial court made no attempt to assess costs or to permit execution to issue for costs.

The new Judicial Article provides an appeal as of right from final judgments of the Circuit Court to the Appellate Court in all cases other than those appealable directly to the Supreme Court, except that after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acquittal. It also provides that appeals to the Appellate Court from other than final judgments of the Circuit Court may be provided for by rule of the Supreme Court. (Constitution of Illinois 1870, art 6, § 7.) Article 6 became effective January 1, 1964, and sections 77 and 78 of the Civil Practice ...

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