APPEAL from the Circuit Court of Champaign County; the Hon.
CREED D. TUCKER, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 14, 1979.
What is a final order for purposes of appealability?
The primal problem which we must untangle is whether or not we have jurisdiction to entertain this appeal on the rather mundane procedural issues posited.
St. Joseph Data Service, Inc., filed an action against Thomas Jefferson Life Insurance Company of America in three separate counts. Counts I and II sought relief for breach of express contract and count III was based on a theory of estoppel. After the court granted defendant's motion to dismiss counts I and III of the complaint, St. Joseph filed an amended complaint. Again the court granted Jefferson's motion to dismiss as to counts I and III. St. Joseph then filed a second amended complaint, containing an additional count. Following arguments of counsel, the court dismissed counts I, III, and IV, and via docket entry said:
"Now on this day, ruling on cause heretofore taken under advisement. Motion to dismiss allowed on the grounds that there is no ambiguity in the contract appended as Exhibit "A" to the Second Amended Complaint and that the written instrument is controlling. Counts I, III and IV of Second Amended Complaint dismissed. No just cause for delay of enforcement or appeal as to such dismissal. No written order required."
St. Joseph has appealed from that order dismissing the three counts.
1 The threshold question which must be dealt with is whether this court has jurisdiction to consider this appeal under Supreme Court Rule 304. (Ill. Rev. Stat. 1977, ch. 110A, par. 304.) Supreme Court Rule 304(a) provides that an appeal may be taken from a final judgment as to one or more but fewer than all the parties or claims if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. The rule, however, does not dispense with the necessity of a final order. (Peterson v. Tazewell County (1975), 29 Ill. App.3d 915, 330 N.E.2d 888.) As the committee comments to the rule note: "It is not the court's finding that makes the judgment final, but it is the court's finding that makes this kind of final judgment appealable."
The Illinois Supreme Court, in Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 48, 147 N.E.2d 371, 372, defined a final and appealable order this way:
"To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. [Citations.] While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof. [Citations.]"
While there is no general provision in the Civil Practice Act which requires that orders of dismissal specifically include certain "magic" words to indicate finality, previously orders dismissing complaints which did not include the words "plaintiff take nothing," "defendant go hence without day," or phrases of equal import, were not final orders. Johnson v. City of Rockford (1960), 26 Ill. App.2d 133, 169 N.E.2d 534, overruled, Peach v. Peach (1966), 73 Ill. App.2d 72, 218 N.E.2d 504; Thompson v. Contreras (1950), 340 Ill. App. 527, 92 N.E.2d 340; Aetna Plywood & Veneer Co. v. Robineau (1949), 336 Ill. App. 339, 83 N.E.2d 896; Prange v. City of Marion (1938), 297 Ill. App. 353, 17 N.E.2d 616; contra, Peach v. Peach (1966), 73 Ill. App.2d 72, 218 N.E.2d 504.
More recently courts> have held that substance not form determines whether the order is final. In Bates v. Ulrich (1976), 38 Ill. App.3d 203, 347 N.E.2d 286, this court considered the following order: "It is Ordered that this cause be dismissed at the cost of the Plaintiff." The trial court had earlier dismissed the original and first amended complaints for failure to state a cause of action, but had granted leave to amend. In holding the order to be final and appealable, this court stated:
"A general dismissal with no right given to plead over, and followed by no request for leave to plead over is a final, appealable order. [Citation.] Substance, not form, determines whether the order is final. [Citation.] The phrase that defendant `go hence without day' are not words of art essential to finality. [Citation.] Neither does finality depend upon whether the `suit,' `cause of action' or `complaint' is dismissed. [Citation.] The record here demonstrates that the trial judge intended the order in question to be final. On the first two occasions his order specifically dismissed the complaint and granted leave to amend. The order in question dismissed the `cause' not the complaint, and assessed ...