Appeal from the Circuit Court of Cook County; the Hon. JOHN J.
GREALIS, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment dismissing plaintiff's cause of action because of res judicata.
The litigation had its origin from a contract wherein defendants agreed to have plaintiff construct an addition to their home for the sum of $3,500. Defendants executed a promissory note for the amount agreed upon, plus interest, payable over a five-year term. Work was commenced but interrupted and the parties entered upon litigation.
Plaintiff filed a Claim and Cognovit on the promissory note on June 29, 1962 and a judgment by confession was entered in the amount of $3,757.50. In order to obtain a wage deduction order, plaintiff served defendants with a Summons in Confirmation. Ill Rev Stats, c 62, § 82 (1963). This section provides, inter alia, that a judgment by confession without service of process on the defendant shall not be the basis for seeking a deduction order, unless such judgment is confirmed after service of process, by trial de novo, as if such confession of judgment had not been obtained.
After a hearing on December 7, 1962, an order was entered denying confirmation, vacating the judgment and dismissing defendants' counterclaim.
On January 3, 1964, plaintiff filed a complaint and subsequently an amended complaint alleging breach of contract and seeking damages and also recovery on quantum meruit and quantum valebant. Defendants' answer denied that plaintiff performed in accordance with the provisions of the contract and further alleged that the City of Chicago precluded further performance under the agreement because the work was being done in violation of the Building Code of the City of Chicago. As a further defense, defendants alleged that the instant litigation "should be dismissed, for the reason that a prior suit 62 Mont. 41900, involving the same parties, subject-matter and issues herein, has been fully determined." Plaintiff's reply denied that the prior litigation 62 Mont. 41900 was res judicata as to the instant litigation.
The cause came on for trial and at the close of plaintiff's case the court granted defendants' oral motion for a finding in their favor on the basis that the cause of action was barred by the doctrine of res judicata because of the proceedings between the parties which had resulted in the denial of confirmation of judgment by confession.
Plaintiff contends that the two actions do not share a controlling fact or issue material to their determination which afforded defendant the defense of res judicata and that the prior proceeding failed to adjudicate the rights in litigation in a final and conclusive manner on the merits.
Defendants rely upon the proceeding to confirm the judgment by confession as a bar to the subsequent proceedings. However, the court in the confirmation proceedings vacated the judgment secured by confession but did not dismiss the cause of action. Thus there was no final order disposing of the litigation regarding the debt evidenced by the promissory note.
In People v. Board of Education Pawnee Tp. High School, 350 Ill. 597, 601, 183 N.E. 633 (1932) the court said:
"Unless a proceeding affords adequate opportunity for an investigation and determination of the merits, the judgment rendered will not operate as a bar to a subsequent suit upon the same cause of action. A judgment cannot be pleaded in bar of a subsequent action unless it is a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definite manner." (Cases cited.)
The court in the confirmation proceedings could have vacated the confession judgment because of technical or procedural defects in the complaint, notice, service, warrant of attorney, etc., or on the ground that the full amount was not due and owing, since the construction had not been completed.
In Schoenbrod v. Rosenthal, 36 Ill. App.2d 112, 116, 183 N.E.2d 188 (1962) this court said:
"The doctrine of res judicata is that a cause of action once adjudicated by a court of competent jurisdiction cannot be tried again between the same parties or their privies in new proceedings, before the same or a different tribunal, except in an action to set aside or review the prior adjudication. (Cases cited.) The doctrine arises where the prior adjudication is relied upon as a conclusive bar to the entire new action. There are three essentials to its application: the cause of action, the parties or their privies, and the subject matter must be the same in both cases. (Case cited.) Not only all the matters which were litigated in the ...