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Mobil Oil Corp. v. Hurwitz

OPINION FILED AUGUST 25, 1978.

MOBIL OIL CORPORATION, PLAINTIFF-APPELLEE,

v.

RALPH HURWITZ ET AL., DEFENDANTS AND COUNTERDEFENDANTS-APPELLANTS. — (PREHN PLAZA, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLEE.)



APPEAL from the Circuit Court of Sangamon County; the Hon. BEN K. MILLER, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The defendant individuals are members of a joint venture and The First National Bank is trustee under a land trust with the joint venture as beneficiary. They appeal from a permanent injunction entered upon the complaint of Mobil Oil prohibiting the sale of petroleum and petroleum products on the described real estate for the duration of a lease dated May 3, 1966, and any extension thereof between Prehn Plaza, Inc. (Prehn), as lessor, and plaintiff Mobil Oil Corporation (Mobil), as lessee.

By leave of court, Prehn, a corporation, was added as a party-defendant. In its answer Prehn joined in Mobil's prayer for the injunction granted and also filed a "countercomplaint" against the defendants which prayed enjoining of the sale of petroleum products by the defendants.

The written decree contains no findings of fact but the court stated findings of fact into the record. Mobil cross-appeals

"* * * from that portion of the Order entered by this Court * * * denying Plaintiff relief under the Prehn Plaza, Inc — Trader's Realty Corporation lease, * * *."

The prayer of Mobil's cross-appeal requests the reviewing court to modify that portion of the trial court's order

"* * * to include the life of a sublease entered into between Prehn Plaza, Inc., and Trader's Realty Corporation, Dewey E. Wilkins and Charles Rock, dated January 1, 1969, and any extensions thereof."

Prehn also filed a cross-appeal from the order of the trial court:

"* * * to the extent that such Order granting a permanent injunction constitutes a finding of fact or a finding of law that the provisions contained in paragraph (I) of a certain sub-lease, dated January 1, 1969 between Prehn Plaza, Inc., a Delaware corporation and Traders Realty, Inc., a corporation, constitutes a restriction on the sale of petroleum products and related occupations for a period of two (2) years only."

The written decree contained no reference to the Prehn-Traders lease, and neither grants nor denies relief upon the covenant contained in the lease from Prehn to Trader. The respective cross-appeals are directed to the oral finding:

"[T]his Court finds that paragraph I of the Prehn to Traders sublease dated January 1, 1969 by itself would not be enforceable to restrict the sale of petroleum products on the property which is the subject matter of this litigation * * *."

• 1, 2 Supreme Court Rule 301 provides for the appeal of "final judgments." It is consistently held that a "finding" upon which no final judgment has been entered is not a final appealable order. (Wilke Metal Products, Inc. v. David Architectural Metals, Inc. (1965), 55 Ill. App.2d 34, 204 N.E.2d 35; Astrauskas v. Tafoya (1965), 64 Ill. App.2d 429, 212 N.E.2d 249; City of Moline v. Whimpey (1965), 60 Ill. App.2d 219, 208 N.E.2d 78; Garmisa v. Garmisa (1972), 4 Ill. App.3d 231, 280 N.E.2d 455.) If a party desires to appeal an adverse finding, it is incumbent upon that party to see that a judgment is entered from which an appeal can be taken and where no final judgment is entered the appeal will be dismissed. (City of Moline v. Whimpey.) Supreme Court Rule 307(a)(1) provides for an appeal from an interlocutory order granting or refusing to grant an injunction. We find nothing in the latter rule, however, which alters the authorities holding that a "finding" is not an appealable order. The respective cross-appeals are dismissed.

By the assignment of certain leases Prehn held a long-term lease for approximately 19.5 acres of land owned by the City of Springfield. For purposes of these proceedings, Prehn may be deemed ...


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