APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
A. SWEENEY, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 14, 1979.
On January 5, 1978, Edward Dobbeck, the executor of Eunice Cochrane's estate, filed a petition in the circuit court of Cook County against, among others, Judith and Howard Manes, the respondents, seeking to recover $4,500 as an alleged asset of Ms. Cochrane's estate. A citation to recover assets was issued against the respondents.
On February 6, 1978, the respondents moved to quash the citation and to dismiss the petition. The motion was granted. On March 1, 1978, the executor filed, in the same proceeding, a second petition against the respondents seeking to recover the same $4,500 as an alleged asset of Ms. Cochrane's estate. The second petition contained additional factual allegations. Again, a citation to recover assets was issued against the respondents.
The respondents moved to dismiss the second petition and to quash the citation arguing, inter alia, that the dismissal of the first petition was res judicata. The motion was denied. Following a hearing, the respondents were directed to return $4,500 to Ms. Cochrane's estate.
On this appeal, respondents contend the trial court erred in rejecting their res judicata defense to the executor's second petition.
We affirm the trial court.
The respondents claim that the executor's first petition, which sought to recover $4,500 from them as an alleged asset of Ms. Cochrane's estate, was dismissed on the merits by the trial court. Since the executor did not move under section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50(5)) to vacate this dismissal order, the respondents urge the order is res judicata and acts as a bar to the second petition seeking the same relief. We disagree.
1 Whether the order dismissing the first petition acts as a bar to the second petition seeking the same relief depends on the basis and substance of the dismissal order and the effect of the adjudication. If the first petition was dismissed because of a technical deficiency in the factual allegations or for any reason not going to the merits of the cause of action, the dismissal would not amount to a final appealable order (Browning v. Heritage Insurance Co. (1974), 20 Ill. App.3d 622, 314 N.E.2d 1) and would not bar the second petition under the doctrine of res judicata (see People ex rel. Scott v. Chicago Park District (1976), 66 Ill.2d 65, 360 N.E.2d 773, Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill. App.2d 310, 252 N.E.2d 123). The dismissal order would not have terminated the litigation between the parties since it could be avoided by a proper amendment.
2 Conversely, if the order dismissing the first petition was based on the merits of the cause of action, and did not rest upon any matter that could be cured by an amended pleading, it would have resulted in a final and appealable order which, not having been vacated, would bar the second petition under the doctrine of res judicata. (See O'Fallon Development Co. v. City of O'Fallon (1976), 43 Ill. App.3d 348, 356 N.E.2d 1293; Martin v. Masini (1967), 90 Ill. App.2d 348, 232 N.E.2d 770.) The rationale is that the effect, if not the form, of the dismissal order would finally fix, determine and dispose of the rights of the parties to the underlying cause of action.
3 The trial court's order dismissing the executor's first petition does not reveal the basis on which the dismissal was granted. In an attempt to ascertain the basis as well as the effect of the dismissal order, we must resort to the pleadings and proceedings before the trial judge at the time the order was entered. See Bernhardt v. Fritzshall (1973), 9 Ill. App.3d 1041, 293 N.E.2d 650.
4 The respondents raised several grounds in their motion to dismiss the executor's first petition. Some of the grounds attacked the sufficiency of the petition's factual allegations while others, although extremely general in nature, apparently challenged the merits of the executor's cause of action. Since alternative grounds were presented, some going to a defect in form and others to substance, the respondents bear the burden of proving that the order dismissing the petition was based on the merits. (Bissell v. Township of Spring Valley (1888), 124 U.S. 225, 232, 31 L.Ed. 411, 414, 8 S.Ct. 495, 499; Restatement of Judgments § 49, comment c ...