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Russell v. Klein





APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.


Rehearing denied March 25, 1977.

This matter comes before this court for a fourth time on plaintiff's appeal from a judgment ordering the return to defendants of monies they had paid in partial satisfaction of a judgment obtained by plaintiff against them.

Plaintiff obtained a judgment by confession in 1966 and, after execution had issued, defendants in 1970 paid $22,000 in partial satisfaction. Thereafter, on motion of defendants, the trial court found that the 1966 judgment had been satisfied by virtue of an oral agreement between plaintiff and Yvonne Klein prior to the $22,000 payment. After plaintiff filed a notice of appeal from that judgment, defendants moved for the return of the monies, and a judgment was entered in their favor for $24,880 ($22,000 plus interest). Plaintiff then filed an amended notice of appeal to include this judgment.

In that first appeal (Russell v. Klein (1973), 14 Ill. App.3d 856, 303 N.E.2d 241 (hereinafter Russell No. 1)), this court found that the motion for the entry of an order of satisfaction of judgment was in the nature of a writ of audita querela and that the remedy was encompassed by section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) and, as a consequence, was barred by the two-year limitation provision in that section. The order satisfying the judgment was reversed as was the order requiring the return of the $22,000 with interest.

On appeal from this court's reversal of both judgments, the supreme court held that because the action was in the nature of the common law writ of audita querela, it was not a remedy contemplated by section 72 and, thus, the two-year limitation provision of section 72 did not apply. That court reversed "* * * the judgment of the appellate court * * * and * * * remanded * * * for consideration of the other issues raised in plaintiff's appeal." (Russell v. Klein (1974), 58 Ill.2d 220, 317 N.E.2d 556.) The supreme court did not discuss or enter any order with respect to the judgment for $24,880 against plaintiff, the reversal of which by the appellate court had also been appealed by defendants. Following the remandment and after considering all issues, this court affirmed the trial court's order that plaintiff's 1966 judgment had been satisfied by the oral agreement. However, this court again reversed the related money judgment for $24,880, holding a lack of jurisdiction because it had been entered after the filing of a notice of appeal. Russell v. Klein (1975), 33 Ill. App.3d 1005, 339 N.E.2d 510 (hereinafter Russell No. 2).

A petition for rehearing was denied and a mandate issued on April 27, 1976, which in relevant part stated as follows:

"The order appealed from of the Circuit Court of Cook County finding that the judgment by confession has been satisfied is affirmed. The money judgment entered by the Circuit Court of Cook County after plaintiff had filed his original notice of appeal is reversed * * *."

Thereafter, on May 3, 1976, defendants again petitioned the trial court for the return of the $22,000, and judgment was entered for $29,865.75 ($22,000 plus interest from May 13, 1970, the date the money was paid) in favor of defendants. This appeal followed *fn1, with plaintiff contending (1) that defendants' right to the return of the $22,000 was litigated in Russell No. 2 and is thus res judicata; (2) that defendants' petition after our opinion in Russell No. 2 for the return of the money was in the nature of a common law writ of retorno habendo and, because the mandate contained no remanding order, the case was not reinstated in the trial court; and (3) that the judgment erroneously assessed prejudgment interest.


Plaintiff first contends that the issues in this appeal are identical to those of Russell No. 2, in that both involve defendants' right to the return of the $22,000. He argues that our reversal of Russell No. 2 of defendants' judgment is res judicata on that question. We disagree.

• 1 A judgment is not res judicata unless rendered on the merits. (People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851; 23 Ill. L. & Prac. Judgments § 321 (1956).) A judgment, however, is not on the merits when it is based solely on a lack of jurisdiction. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill.2d 105, 113, 251 N.E.2d 242.) The filing of a proper notice of appeal causes jurisdiction of the appellate court to attach and deprives the trial court of jurisdiction. City of Chicago v. Myers (1967), 37 Ill.2d 470, 227 N.E.2d 760; Brehm v. Piotrowski (1951), 409 Ill. 87, 98 N.E.2d 725.

• 2 While res judicata applies to judgments of the appellate court (Finley v. Crossley (1953), 414 Ill. 105, 110 N.E.2d 255, the doctrine is not applicable to the matter before us, because in Russell No. 2, we did not make a determination on the merits concerning the rights of the parties to the $22,000. We held only that the trial court lacked jurisdiction to enter the money judgment after the notice of appeal had been filed.

• 3 Nonetheless, plaintiff also contends that the trial court was precluded from entering the judgment for the return of the money since Russell No. 2 reversed without remanding. He argues that, after a reversal, jurisdiction could only be reinvested in the trial court by a remanding order directing some further action. In reply thereto, defendants urge that the judgment was validly entered ...

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