Appeal from the Circuit Court of Du Page County, Eighteenth
Judicial Circuit; the Hon. WILLIAM C. ATTEN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The plaintiff, Barbara L. Coats, brought this action for partition against her former husband, Richard E. Coats, and others having an interest in the premises in question.
A decree for partition was entered on August 22, 1966. The commissioner appointed by the decree filed his report, and a decree for sale was then entered on September 13, 1966. One of the defendants then filed a motion to postpone the sale on the ground that a certain judgment creditor had not been made a party to the suit. This motion was granted and the creditor was made an additional party defendant.
On December 12, 1966, a supplemental decree for sale was entered. This decree, prepared by counsel for plaintiff, directed that the property be sold for at least two-thirds of the valuation ($32,500) placed on the premises by the commissioner, ". . . subject to the lien of first mortgage to Clyde Savings & Loan Association in the principal sum of $23,436.08 as to all of the above-described real estate; to lease and option agreement dated December 28, 1964, with Naperville Truck Sales, Inc., covering premises described in said lease; to judgment in favor of Curran Oil Company, Inc., and against Truman C. Barclay and Georgia Barclay in case No. 61-2490, Circuit Court of DuPage County, Illinois, entered May 8, 1962 for $6,307.52 and costs, which said judgment is a lien upon one-half of the above-described premises; and to lien for attorney's fees in favor of Nathan Shefner and against Richard E. Coats in the sum of $1,000.00 by virtue of decree for divorce entered in case No. 65-2234-G, to be payable out of the net proceeds apportioned to said Richard E. Coats by virtue of the sale herein ordered."
The premises were then offered for sale on January 23, 1967, subject to the terms of the supplemental decree. The plaintiff submitted the highest bid the sum of $2,500. On February 10, 1967, prior to the filing of any report of sale, the defendant, Richard E. Coats, filed exceptions to the sale and asked that it be set aside and not confirmed for the reason, among others, that the decree was ambiguous to the extent that it hindered bidding at the sale.
On February 17, 1967, the Magistrate who conducted the sale filed his report, which stated what he had done in furtherance of the decree for sale. Therein he recommended that the sale be set aside; that the decree for sale be vacated; and that a new and more detailed decree for sale be entered in that under the existing decree it was difficult, if not impossible, to determine the charges against the premises and, consequently, the amount which constituted a proper or desired bid.
The plaintiff filed exceptions to this report and asked that the court enter a decree confirming the sale of the premises to her. Thereafter, on May 31, 1967, the court entered an order vacating and setting aside the sale and ordering the plaintiff to file a second supplemental decree for sale. It is from this decree that the plaintiff has appealed.
As grounds for reversal, the plaintiff urges that the supplemental decree for sale entered on December 12, 1966, was a final decree not subject to collateral attack or vacation after thirty days from the date of its entry; that the magistrate in conducting this sale was acting in a purely ministerial capacity and had no right to make a report to the court which included recommendations of any nature; and that the trial court's order vacating and setting aside the sale of January 23, 1967, was arbitrary and an abuse of the court's discretion.
With reference to her first contention, the plaintiff cites section 72 of the Civil Practice Act (Ill. Rev Stats 1965, c 110, par 72) and a number of cases which hold that after thirty days from the entry of a final, appealable order, the court is without power to review or amend such order except for certain established reasons. The plaintiff also refers to the cases of Schuck v. Schuck, 413 Ill. 390, 394, 395, 108 N.E.2d 905 (1952) and Rabe v. Rabe, 386 Ill. 600, 604, 54 N.E.2d 518 (1944) for the proposition that a decree of partition, a decree ordering the sale of the premises, and a decree confirming the report of sale are final and appealable decrees which cannot later be attacked by a party if not appealed from. Consequently, the plaintiff urges that any such decree could not be modified by the court after the expiration of thirty days from the date of its respective entry. (Ill. Rev Stats 1965, c 110, par 68.1(3).)
In Getzelman v. Koehler, 14 Ill.2d 396, 399-401, incl., 152 N.E.2d 833 (1958) the court determined this contention adverse to the plaintiffs. After referring to earlier decisions which held that the decree for partition was a final and appealable decree, it stated that consideration must be given to the effect of the subsequently enacted section 50(2) of the Civil Practice Act. (Ill. Rev Stats 1965, c 110, par 50(2).) The Partition Act (Ill. Rev Stats 1965, c 106) contains no provision relative to when a decree thereunder is final and appealable and, thus, as provided in section 28 thereof (Ill. Rev Stats 1965, c 106, par 71) the provisions of the Civil Practice Act and the rules adopted pursuant thereto apply and are controlling.
Section 50(2) of the Civil Practice Act provided in part: "In the absence of that finding (an express finding that there is no reason for delaying enforcement or appeal), 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."
In Getzelman, the court held that consonant with its views expressed in Hanley v. Hanley, 13 Ill.2d 209, 148 N.E.2d 792 (1958) and in Ariola v. Nigro, 13 Ill.2d 200, 148 N.E.2d 787 (1958), a partition decree, under section 50(2), although final, was not appealable because it determined fewer than all of the rights and liabilities in issue. At page 400, the court stated: "A party, wishing to appeal from a partition decree before disposition of an accounting or other issue, should move the trial court to make an express finding in its decree that there is no just reason for delaying appeal therefrom." This rationale also applies to a decree for sale and a decree confirming a report of sale. Thus, such decrees are subject to revision at any time before the entry of a judgment adjudicating all of the claims, rights and liabilities of all the parties. Present Supreme Court Rule 304 (Ill. Rev Stats 1967, c 110A, par 304), effective January 1, 1967, supplants paragraph (2) of section 50 of the Civil Practice Act, but without any change of substance.
In the case at bar, the trial court had not yet confirmed the sale nor approved an accounting of the proceeds of the sale. Thus, it retained the power to revise its supplemental decree for sale entered on December 12, 1966, and the parties to the proceeding had the right to seek such a revision. Getzelman v. Koehler, supra; Calumet Federal Savings & Loan Ass'n of Chicago v. Markman, 50 Ill. App.2d 430, 438, 200 N.E.2d 419 (1964). Until the court enters an order approving an accounting of the proceeds of the sale, fewer than all the rights and liabilities of the parties are adjudicated, and, absent a finding that there is no reason for delaying an appeal, the prior orders in the partition action are not appealable.
Paragraphs 5 and 7 of Article 6 of the Illinois Constitution, and Supreme Court Rule 301 (Ill. Rev Stats 1967, c 110A, par 301) provide that every final judgment of a circuit court is appealable as a matter of right. Supreme Court Rules 306 and 307 permit appeals from orders granting a new trial and from other specified interlocutory orders, not pertinent in the case at bar. ...