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Smock v. Williamson

ILLINOIS APPELLATE COURT — FIFTH DISTRICT.


FEBRUARY 14, 1967.

WILBURN B. SMOCK, PLAINTIFF,

v.

NOLAN M. WILLIAMSON, D & M RENTALS, INC., TEMPCO PRODUCTS CO., A CORPORATION, DEFENDANTS. DOICE GUNNELS, PLAINTIFF,

v.

TEMPCO PRODUCTS CO., A CORPORATION, D & M RENTALS, INC., AND NOLAN M. WILLIAMSON, DEFENDANTS.

Appeal from the Circuit Court of Wabash County; the Hon. RANDALL S. QUINDRY, Judge, presiding. Appeal dismissed and case remanded.

MORAN, P.J.

This is an appeal from the Circuit Court of Wabash County, Illinois, from an order of the trial court denying the defendants' motion for judgment against plaintiff, Wilburn Smock.

After plaintiff Smock filed suit against the defendants for personal injuries, Doice Gunnels, a passenger in Smock's automobile, also filed suit. The cases were consolidated for trial on a motion by the defendants and were tried before a jury. At the end of the arguments, the trial court granted the defendants' motion for a mistrial as to Smock. *fn1 The jury then returned a verdict for the defendants and against the plaintiff Gunnels. After Gunnels' post-trial motion was overruled, the defendants filed a motion for judgment in their favor against plaintiff Smock on the ground that the issue of the defendants' negligence had been decided by a jury in favor of the defendants and that further litigation of the question was barred under the doctrine of estoppel by verdict. The trial court overruled the defendants' motion, but found and ordered that "there is no just cause for delay in an appeal by defendants from the Court's Order. . . ."

Since the order of the trial court did not terminate the litigation between the parties on the merits of the cause so that, if affirmed, the trial court had only to proceed with the execution of the judgment, the order is not final and appealable, and this court has no jurisdiction to hear this appeal. Village of Niles v. Szczesny, 13 Ill.2d 45, 147 N.E.2d 371; Midstates Finance Co. v. Waller, 67 Ill. App.2d 437, 214 N.E.2d 624.

For the foregoing reasons this appeal is dismissed and the case is remanded for further proceedings not inconsistent with this opinion.

Appeal dismissed and case remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


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