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Petersen Bros. Plastics, Inc. v. Ullo

OPINION FILED JANUARY 18, 1978.

PETERSEN BROS. PLASTICS, INC., PLAINTIFF-APPELLANT,

v.

TOM ULLO, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE. — (BEGINNINGS, INC., THIRD-PARTY DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE E. DOLEZAL, Judge, presiding. MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE SIMON delivered the opinion of the court:

Plaintiff Petersen Bros. Plastics, Inc. (Petersen) recovered a judgment against the defendant Tom Ullo (Ullo) which was vacated 5 months later. Petersen appeals from a denial of its motion seeking reinstatement of that judgment. Petersen contends that the circuit court had no jurisdiction to vacate the judgment after it had been in existence for 5 months.

• 1 This appeal involves a determination of when, in litigation involving multiple claims or multiple parties, judgments entered as to one or more but fewer than all of the parties or claims are final and appealable and no longer subject to revision by the circuit court. Although neither party to this appeal has discussed Supreme Court Rule 304(a), it is the view of this court that the Rule controls this appeal. (Ill. Rev. Stat. 1975, ch. 110A, par. 304(a).) The specific issue is whether this Rule grants a circuit court the authority to vacate and revise all judgments in multiclaim cases after final judgments initially have been entered on all claims and subsequently one of the judgments is properly vacated pursuant to a motion filed within 30 days of its entry under section 68.3 of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 68.3.) As we construe Rule 304(a), it enables the circuit court to maintain its jurisdiction in these circumstances over all judgments in the case. Consequently, for the reasons discussed below the Rule deprives this court of jurisdiction to hear this appeal. Even though the parties to an appeal have not, as in this case, argued that issue, it is necessary for us to view this appeal in the light of Rule 304(a) as it is the duty of an appellate court to determine whether it has jurisdiction to decide an appeal. Hazel v. Hayes (1973), 14 Ill. App.3d 292, 295, 302 N.E.2d 458; E.M.S. Co. v. Brandt (1968), 103 Ill. App.2d 445, 448, 243 N.E.2d 695.

This chronological summary of a lengthy series of pleadings, motions and orders is helpful to an understanding of the reasons for the dismissal of this appeal.

July, 1975 — Petersen filed its complaint against Ullo, seeking payment for goods sold and delivered to Ullo.

October, 1975 — Ullo answered by denying Petersen's claim and filed a third-party complaint against Beginnings, Inc. (Beginnings), alleging Ullo agreed to furnish services for Beginnings. Ullo claimed this agreement required it to purchase goods from Petersen for which Beginnings was obligated to pay.

March 2, 1976 — Judgment entered in favor of Petersen and against Ullo. Also, a default judgment for the same amount entered in favor of Ullo and against Beginnings.

March 29, 1976 — Beginnings served notice of and filed motion to vacate March 2, 1976, default judgment.

April 5, 1976 — The March 2, 1976, judgment in favor of Ullo and against Beginnings was vacated; Beginnings given leave to appear and defend, and trial set for August 13, 1976.

April 28, 1976 — Ullo served notice on Petersen and on Beginnings of and filed two motions to be presented on May 17, 1976; one was to vacate judgment entered March 2, 1976, in favor of Petersen and against Ullo, alleging in support of its motions that goods and workmanship furnished by Petersen were defective and that this defense was unknown to Ullo's attorney when the judgment in favor of Petersen was entered; the second motion was to set aside order of April 5, 1976, vacating March 2, 1976, judgment in favor of Ullo against Beginnings.

May 13 to June 7, 1976 — Petersen filed reply to Ullo's motion to vacate judgment, and pending motions continued to July 12, 1976.

July 12, 1976 — Order entered reinstating the third-party judgment in favor of Ullo and against Beginnings which had been vacated by order of April 5, 1976, with order reciting that the motion to vacate the judgment in favor of Petersen and against Ullo was withdrawn as moot.

August 2, 1976 — Beginnings filed a written motion to vacate order of July 12, 1976, on ground court had no jurisdiction to vacate its April 5, 1976 order.

August 2, 1976 — On motion of Beginnings to vacate order of July 12, 1976, court vacated and set aside all prior orders and ...


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