Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Harry G. Hershenson, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Elizabeth Ann Towns, appeals from the appellate court's affirmance of an order entered by the circuit court of Cook County dismissing plaintiff's cause of action against defendant Joseph Smith, Jr., on the basis of res judicata.
On March 29, 1972, plaintiff was riding as a passenger in a cab owned by Yellow Cab Co., and driven by defendant Joseph Smith, Jr. While traveling south on the Dan Ryan Expressway, in Chicago, the cab became involved in a multiple-car collision which resulted in injury to the plaintiff. In November 1972 plaintiff filed a five-count complaint seeking damages against Yellow Cab, its servant Joseph Smith, Jr., and the drivers of the three other vehicles. The allegations against Yellow Cab and Smith were all contained in count I, where it was charged that Yellow Cab, acting through Smith, committed the acts of negligence set forth in that count.
Yellow Cab Co. filed an answer on December 7, 1972. It did not deny agency but denied liability. With the filing of the answer, Yellow Cab submitted interrogatories to plaintiff, which plaintiff failed to answer. Three separate orders of the court directed her to do so, but she still failed to answer. Accordingly, on May 11, 1973, the court dismissed plaintiff's allegations against Yellow Cab with prejudice, pursuant to Supreme Court Rule 219(c) (58 Ill.2d R. 219(c)). Plaintiff took no appeal from the order of dismissal, which was final and appealable by its terms.
Defendant Smith was not served with summons until October 22, 1973. Upon being served, Smith appeared and filed a motion for judgment, claiming that the judgment of May 11 was res judicata. After several continuances, the motion was heard by a motion judge on October 7, 1974, at which time it was denied. The case was consolidated with an action which Smith had pending against the other drivers involved in the accident, and assigned to a judge for pretrial conference.
Smith orally renewed his motion for judgment before the pretrial judge, making the same argument he had presented to the motion judge. It was his contention that Supreme Court Rule 273 (58 Ill.2d R. 273), which in pertinent part provides that "an involuntary dismissal * * * operates as an adjudication upon the merits," served to make the order dismissing Yellow Cab an adjudication of the issues between plaintiff and defendants Yellow Cab (the master) and Joseph Smith (its servant). Contrary to the finding of the motion judge, the pretrial judge agreed with this contention and, accordingly, held that further action between plaintiff and defendant Smith was barred on the basis of res judicata. As noted above, the appellate court affirmed the decision of the trial court. (53 Ill. App.3d 47.) We granted plaintiff's petition for leave to appeal.
Plaintiff raises two issues for our consideration. First, we must decide whether it was proper for the pretrial judge to consider the defendant's renewed motion for judgment after the motion had previously been considered and denied by the motion judge. Second, we must consider whether the trial court properly held that an adjudication upon the merits by virtue of Rule 273, in favor of defendant Yellow Cab, served to bar further action between the plaintiff and defendant Smith.
In rejecting the plaintiff's argument that the trial court improperly considered the defendant's renewed motion for judgment, the appellate court relied on Supreme Court Rule 304(a). That rule allows for appeals to be taken from final judgments as to one or more but fewer than all of the parties or claims if the trial court makes an express finding that there is no just reason for delaying the appeal. (58 Ill.2d R. 304(a).) However, the rule further provides:
"In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." 58 Ill.2d R. 304(a).
Relying on this part of Rule 304(a), the appellate court, noting that the motion judge had not found that there was no just reason for delaying an appeal from his order, categorized the trial court's action as a revision of the nature authorized by the rule. The court, in so holding, found the plaintiff's argument that the trial court's action was in fact a reversal, and not a Rule 304(a) revision, to be unconvincing.
We agree with the conclusion of the appellate court that the trial court acted within the bounds of its authority in amending the motion judge's order which refused to dismiss defendant Smith. It is not necessary, however, for us to decide whether the trial court's action was a "revision" as the term is used in Rule 304(a). We believe that the power of the trial judge in this case to reconsider the motion judge's order derived from the traditional power of a court to amend and revise interlocutory orders.
As noted above, Rule 304(a) provides that in the absence of an express finding by the court certifying the judgment for appeal, "any judgment that adjudicates fewer than all the claims * * * is subject to revision at any time * * *." (Emphasis supplied.) 58 Ill.2d R. 304(a).
A judgment has been traditionally defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (49 C.J.S. Judgments sec. 5 (1947).) Because judgments are final in nature, the rule developed that judgments as to fewer than all parties or claims were not only appealable, but had to be appealed if the rights of the party against whom the judgment had been entered were to be preserved. (Ill. Ann. Stat., ch. 110A, par. 304(a), Historical and Practice Notes, at 586 (Smith-Hurd 1968).) The appeal from judgments that were obtained as to one or more but fewer than all of the parties or claims, however, resulted in undesirable fragmentary appeals. Rule 304(a), like its precursor, former section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 50(2)), was designed to eliminate the absolute necessity for all such appeals by limiting the circumstances in which appeals from judgments that determine less than all of the matters involved in a case may be taken. Thus, where a judgment is entered for plaintiffs on one or more but fewer than all the counts in a multicount complaint, but the judgment does not dispose of the other counts, the judgment is not appealable in the absence of an express certification by the trial court ...