APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
J. DURHAM, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendants appeal from an order denying a motion for stay of execution of a judgment by confession and for leave to file a counterclaim. The order was entered after a return of a mandate issued pursuant to an opinion of this court in a prior appeal in this case. Style Builders, Inc. v. Fuernstahl, 21 Ill. App.3d 898, 315 N.E.2d 923.
Plaintiff had contracted to remodel the home of defendants, who gave plaintiff their promissory note which included a confession of judgment clause. Thereafter, plaintiff obtained a judgment by confession on the note in the Circuit Court of Cook County. In an amended motion to vacate the judgment, defendants asserted that the suit was improperly brought in Cook County; and, alternatively, they asked leave to file a counterclaim for damages against plaintiff.
The trial court ordered vacation of the judgment, concluding that section 50(3) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 50(3))*fn1 allows applications for judgment by confession only in counties wherein one or more of the defendants reside or own real or personal property, and that the judgment was void because defendants resided in and owned property only in Du Page County. In its order, the court also granted defendants leave to file a counterclaim.
In our opinion on plaintiff's appeal from that order, we considered only the question of whether the judgment was properly confessed in Cook County and, there having been an admission that defendant Steven Fuernstahl was employed in Cook County and had a right to receive wages there, we concluded that this was sufficient to satisfy the requirements of section 50(3). Accordingly, we found that the action was properly brought in Cook County, and we reversed and remanded with directions to reinstate the judgment.
A summary of events leading to the first appeal is necessary to bring this issue into proper focus and, in this regard, we note that the first motion of defendants to vacate was stricken and, seven months later, defendants moved to set it for hearing and to amend it to a motion to open the judgment. On the same day the motion was presented, the trial judge entered an order denying "the motion to vacate the judgment." No action was then taken for about six months, when defendants made a new motion to vacate the judgment on June 15, 1973, asserting the judgment was void and alleging they were diligent and had a good and meritorious defense. This motion was supported by their affidavits and alternatively asked leave to file a counterclaim and requested a stay of proceedings. In its ruling on this action, the court on July 10, 1973, ordered a vacatur of the judgment and granted defendants leave to file a counterclaim. In the appeal from that order, we considered only the question of the validity of the judgment, and we specifically stated in our opinion that we did not deal with the other contentions raised.
Upon remandment, defendants moved to stay the execution of the judgment and to allow "the filing of a counterclaim heretofore authorized by the court." Tendered with the motion was a copy of the counterclaim defendants wished to file. It sought $10,000 damages on allegations that plaintiff not only negligently failed to complete its contract, but also that the partially completed work was done in such an unworkmanlike manner that the premises were rendered uninhabitable. The trial court denied both motions and included in its order a finding of no just reason for delaying appeal. From that order, defendants have taken this appeal.
Defendants contend that upon remandment the trial court improperly denied them the right to file a counterclaim. They argue that they had previously been granted leave to file it and, because our prior opinion did not consider the propriety of that portion of the order, the trial court should have allowed the counterclaim to be filed.
• 1 The sole support offered by plaintiff for the court's denial of the filing of the counterclaim is res judicata. First, it contends that by reinstating the judgment we determined the counterclaim issue and, as a result, defendants are barred from raising it again by that doctrine. In People v. Kidd, 398 Ill. 405, 408, 75 N.E.2d 851, the court stated:
"The doctrine of res judicata, briefly stated, is that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action."
As stated in Kidd, a judgment is not res judicata unless rendered on the merits. See also, The Charles E. Harding Co. v. Harding, 352 Ill. 417, 186 N.E. 152; Workmen's Lumber and Construction Co. v. Martin, 121 Ill. App.2d 352, 257 N.E.2d 494. A judgment is on the merits when it amounts to a decision as to the respective rights and liabilities of the parties, based on the ultimate facts or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends. Radice v. Antonacci, 120 Ill. App.2d 478, 257 N.E.2d 233; 23 Ill. L. & Pr. Judgments § 322.
Here, we note the following:
1. Our prior opinion did not determine, as plaintiff suggests, "that the plaintiff rendered the services in accordance with the ...