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Burtell v. First Charter Service Corp.






Rehearing denied February 16, 1978.

• 1 In solving the problems raised by this appeal, we are required initially to perform our duty of determining whether "the appeal has been properly taken so as to invoke our jurisdiction." (Artoe v. Illinois Bell Telephone Co. (1975), 26 Ill. App.3d 483, 484, 325 N.E.2d 698.) The factual basis for this determination will first be set out.

Charles P. Burtell (plaintiff) filed a second amended complaint against Saul Bass, Howard Bass, Mitchell Bass, First Charter Service Corporation, Unity Savings Association, Bass Financial Corporation and Pioneer Trust and Savings Bank, as Trustee (defendants). The first count sought to establish a joint venture in connection with real estate in Wheeling, Illinois. The second count sought similar relief concerning a piece of vacant real estate in Chicago. The third count sought imposition of a constructive trust and other relief. The first two counts prayed an accounting regarding the alleged joint ventures. After trial by the court, a judgment was entered on December 19, 1975, which dismissed count III completely, denied the prayer for relief in count I, and found that a joint venture existed between the parties concerning the property described in count II. The judgment ordered filing of an account by First Charter Service Corporation (First Charter), the filing of objections thereto by plaintiff and hearing on these objections. The trial court reserved jurisdiction to enforce the terms thereof; to order any payment that might be found due as a result of the accounting and to rule upon matters pending by reason of the pleadings. This last reservation pertained to defendants' motion for fees and costs concerning the pleadings pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 41).

No appeal was taken from this judgment of December 19, 1975. Instead, the parties proceeded with the filing of an account and objections thereto. After hearing argument of counsel on these matters, the court entered a judgment on the final accounting on June 1, 1976. This judgment contains a number of findings of fact and a statement of expense and profit in connection with the joint venture as alleged in Count II and concludes, in part, with entry of judgment in favor of plaintiff and against First Charter for $89,998.22. The court also ordered that there was no just reason to delay enforcement of or appeal from said judgment. On June 28, 1976, after a hearing, the court denied the motion of defendants for taxation of fees and costs.

On June 30, 1976, all of the defendants joined in a notice of appeal to this court. The notice recites that defendant First Charter appeals from the judgment of June 1, 1976, and that this defendant, the three individual Bass defendants and Unity Savings Association, appeal from the order of June 28, 1976, denying section 41 relief. Defendants prayed that the money judgment of June 1, 1976, be reversed and plaintiff's complaint dismissed; or, alternatively, for reversal and remand for a new trial and that the trial court be directed to sustain the motion of the defendants for section 41 relief.

On June 30, 1976, defendants filed an amendment to the signature block of the notice of appeal to add the names of remaining defendants other than First Charter thereto.

Briefs were filed and oral argument was held. During the argument, this court raised procedural problems of a jurisdictional nature and requested that the parties file supplemental memoranda bearing upon these propositions. The parties have complied with this order.

Upon consideration of the entire record herein, of the additional memoranda and the authorities cited, we have concluded that we have no jurisdiction to review the judgment of December 19, 1975, and that our consideration of the merits of this appeal should be limited to the judgment on final accounting entered June 1, 1976, and the order for denial of defendants' motion for section 41 relief, entered June 28, 1976. Our reasons follow.

• 2 Authority need not be cited to the point that appeal to this court, in civil cases, with certain exceptions not material here, may be had only from final judgments. (Ill. Rev. Stat. 1975, ch. 110A, par. 301.) Many, many cases decided by the reviewing courts> of Illinois have stated and restated the law to be that a final and appealable judgment is one which terminates the litigation and disposes of the rights of the parties either upon the entire controversy or upon some definite and separate part of it. South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill.2d 119, 121, 254 N.E.2d 448.

The theory that the judgment of December 19, 1975, was an appealable order is based upon the frequently cited case of Altschuler v. Altschuler (1948), 399 Ill. 559, 569-70, 78 N.E.2d 225. (See also Deckard v. Joiner (1970), 44 Ill.2d 412, 416-17, 255 N.E.2d 900; Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App.3d 1053, 1056-57, 360 N.E.2d 458.) In their memorandum, counsel for defendants cite cases such as Ariola v. Nigro (1958), 13 Ill.2d 200, 148 N.E.2d 787; Hanley v. Hanley (1958), 13 Ill.2d 209, 148 N.E.2d 792; and Smith v. Hodge (1958), 13 Ill.2d 197, 148 N.E.2d 793. We have given consideration to these authorities in the light of the statement made in the Historical and Practice Notes to Supreme Court Rule 304 Ill. Ann. Stat., ch. 110A, par. 304 (Smith-Hurd 1968).) The authors there state that the rule established in Altschuler was "abrogated by the Supreme Court" in Ariola and Hanley. After careful consideration of this thought, we have concluded that we need not reach a decision of the problem. Regardless of the result at which we might arrive, there is an additional factor which, in our opinion, prevents us from reviewing the judgment of December 19, 1975.

As shown, the judgment of June 1, 1976, is admittedly final. The notice of appeal is directed solely to the judgment of June 1, 1976, and the order on the section 41 relief entered June 28, 1976. The applicable rule regarding the notice of appeal provides that "[i]t shall specify the judgment or part thereof appealed from * * *." (Ill. Rev. Stat. 1975, ch. 110A, par. 303(c)(2).) The notice of appeal before us makes no mention of the separate judgment previously entered on December 19, 1975. It is limited solely to the judgment of June 1, 1976, and the subsequent order of June 28, 1976. The prayer for relief in the notice of appeal is expressly limited to these matters. This is a carefully and well-drafted notice of appeal. Counsel amended the notice to make sure that it reflected the signatures of all of the defendants who joined in the appeal. Apparently the appeal was thus advisedly and not inadvertently limited to the two orders entered in June 1976.

• 3 A number of cases decided by this court have pointed out the need for the notice of appeal to specify the judgment appealed from. In the case before us, we have complete omission from the notice of appeal of a separate and entirely independent judgment. It is our interpretation of the law of Illinois that in a situation of this type we lack jurisdiction to review the unspecified judgment on appeal. (See People v. Lowe (1975), 30 Ill. App.3d 49, 51, 331 N.E.2d 639; Wells v. Kern (1975), 25 Ill. App.3d 93, 99, 322 N.E.2d 496; People v. Harvey (1972), 5 Ill. App.3d 499, 502, 285 N.E.2d 179, cert. denied (1973), 410 U.S. 983, 36 L.Ed.2d 179, 93 S.Ct. 1504; and Scheffler v. Ringhofer (1966), 67 Ill. App.2d 222, 224-25, 214 N.E.2d 575.) We will, therefore, proceed with a consideration of the points raised on appeal from the judgment orders of June 1, 1976, and June 28, 1976.


After entry of the judgment of December 19, 1975, and pursuant thereto, defendant, First Charter, filed a statement of account concerning the so-called Foster and Dee property involved in count II. On January 23, 1976, plaintiff filed objections to certain items in the account. After a hearing, the trial court entered ...

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