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Wells v. Kern

JANUARY 30, 1975.

NATHANIEL WELLS, PLAINTIFF-APPELLEE,

v.

CHARLES KERN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Madison County; the Hon. A.A. MATOESIAN, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This appeal arises as a result of a suit brought by the plaintiff, Nathaniel Wells, in the circuit court of Madison County to enforce a promissory note in the amount of $3,050, due December 1, 1969. A complaint was filed December 5, 1969, against the defendants, Charles Kern and Glenda Kern, his wife, alleging that this note was due and payable by the defendants, and that, after demand, no payment was forthcoming. Within 30 days of the filing of the complaint, defendants filed an answer denying the allegations of the complaint and alleging as an affirmative defense that defendant, Charles Kern, had been adjudicated bankrupt in Federal District Court and was thereby absolved from liability on the note.

On April 2, 1973, this cause was called for hearing and the defendants did not appear; after evidence was heard on the plaintiff's complaint, a judgment was entered for plaintiff against defendants. On May 30, 1973, a request for the issuance of a citation to discover assets was requested, and on June 7, 1973, this citation was issued and properly served on the defendants.

Defendants, on July 9, 1973, filed a "Motion to Set Aside Judgment and for Further Relief." The hearing on the citation to discover assets was continued. The motion came on for hearing on November 8, 1973. All parties appeared by their respective counsel, arguments were heard and the "Motion to Set Aside Judgment and for Further Relief" was denied. No appeal was taken from the order of denial.

A second "Motion to Set Aside Judgment" was filed by the defendants on November 21, 1973. On February 8, 1974, the trial court heard arguments on this "Motion to Set Aside Judgment" with all the parties present by their respective attorneys. The court denied this motion as well; appeal bond was fixed, but no appeal has been taken from the order of denial entered upon that date.

On March 8, 1974, a notice of appeal was filed by the defendants, appealing from the trial court's default judgment entered against defendants on April 2, 1973, and asking this court to reverse, set aside and arrest that judgment, or alternatively, to remand the cause for a new trial.

Both the defendants-appellants and the plaintiff-appellee have taken the position in their briefs and on oral argument that this appeal is one taken from the trial court's orders denying defendants-appellants' two motions to set aside judgment under section 72 of the Civil Practice Act (Illinois Rev. Stat., ch. 110, par. 72). This court cannot reach the merits of this appeal on this theory.

The threshold question in this case, as in every appeal, is whether this court has jurisdiction of this appeal. Our Supreme Court Rule 301 provides that:

"Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional. An appeal is a continuation of the proceeding. All rights that could have been asserted by appeal or writ of error may be asserted by appeal." (Ill. Rev. Stat., ch. 110A, par. 301.)

Our Supreme Court Rules also provide that:

`* * * the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or non-jury case, within 30 days after the entry of the order disposing of the motion." Ill. Rev. Stat., ch. 110A, par. 303(a).

The Supreme Court Rules, in addition, contain a rule entitled "APPEALS FROM FINAL JUDGMENTS THAT DO NOT DISPOSE OF AN ENTIRE PROCEEDING." (Ill. Rev. Stat., ch. 110A, par. 304.) Subsection (a) thereof requires an express written finding that there is no just reason for delaying enforcement or appeal. Subsection (b), however, provides that:

"The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:

(3) A judgment or order granting or denying any of the relief prayed in a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 72)." ...


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