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Williams v. A.e. Staley Manufacturing Co.

OPINION FILED FEBRUARY 4, 1980.

VERNON E. WILLIAMS, PLAINTIFF-APPELLEE,

v.

A.E. STALEY MANUFACTURING COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 6, 1980.

This is an appeal by A.E. Staley Manufacturing Company (Staley) from an order of the circuit court of Madison County vacating a previous order dismissing plaintiff Vernon E. Williams' action for personal injuries against it, and reinstating plaintiff's cause.

Plaintiff Williams filed an action against Staley on October 31, 1977. On January 26, 1978, plaintiff filed an amended complaint seeking damages for personal injuries he allegedly sustained from a fall at Staley's building in Decatur, Illinois, while he was working there for an independent contractor. On March 1, 1978, Staley filed an answer to plaintiff's amended complaint. Staley also filed written interrogatories and a request to produce certain documents, objects and tangible items. Defendant had filed identical interrogatories and a request to produce on December 7, 1977, in response to plaintiff's initial complaint.

On April 7, 1978, plaintiff filed answers to the interrogatories but did not respond to Staley's request to produce. On August 31, 1978, still having received no production from plaintiff, Staley filed a motion to dismiss plaintiff's complaint. This motion was allowed and the court entered an order dismissing plaintiff's cause on September 12, 1978. The order directed the clerk of the court to mail copies of the order to the parties' attorneys. A minute record notation of the following day indicates that copies were so mailed.

Seventy-nine days after the entry of the judgment dismissing plaintiff's cause, plaintiff filed a motion to set aside the order and reinstate his cause of action. This motion, which was neither verified nor supported by affidavits, alleged that at the time of the order dismissing his cause the compliance with Staley's request to produce had been prepared but through some inadvertence had not been mailed. Staley filed objections to the motion to reinstate asserting that since 30 days had elapsed from the entry of the involuntary dismissal order, it was final and not subject to being amended or set aside. On December 27, 1978, the circuit court entered an order over Staley's objection granting plaintiff's motion to reinstate.

Subsequently, on January 3, 1979, plaintiff filed a verified motion to amend the form of the September 12, 1978, order of dismissal. The proposed amendment would have changed the order to indicate that the dismissal was entered without prejudice, in supposed conformity to the "usual and customary manner of the Court" in issuing such dismissals. The motion indicated further that although a copy of the dismissal order was mailed to his counsel on September 13, 1978, he did not receive it and was unaware of the dismissal until mid-November 1978 when he was informed about it by Staley's attorney. On January 19, 1979, Staley filed a notice of appeal from the December order vacating the judgment of dismissal and reinstating plaintiff's cause. No further action was taken with respect to plaintiff's January 3, 1979, motion to amend.

Both parties apparently assume that the order setting aside the dismissal and reinstating plaintiff's cause is appealable to this court under Supreme Court Rule 304(b)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(b)(3)), which provides for appeals from judgments or orders granting or denying relief prayed for in a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). We find this assumption to be erroneous.

• 1, 2 While it is true that section 72 provides a simple method for obtaining various forms of relief from a final order or judgment beyond 30 days from its entry (Reich v. Breed (1979), 70 Ill. App.3d 838, 388 N.E.2d 994; David Plywood & Lumber Co. v. Sloan (1977), 52 Ill. App.3d 71, 367 N.E.2d 101), the fact that one files a motion seeking such relief beyond the 30-day period does not automatically transform the motion into a section 72 petition. A petition seeking relief from a final judgment under section 72 must be supported by affidavit or other appropriate showing as to matters not of record. (Wayne v. Thompson (1974), 18 Ill. App.3d 908, 310 N.E.2d 789; Ill. Rev. Stat. 1977, ch. 110, par. 72(2).) Although plaintiff's motion to set aside the order of dismissal sought to rely on matters beyond the record, it was not supported by affidavit or any other appropriate showing, such as verification (see generally Coronet Insurance Co. v. Jones (1977), 45 Ill. App.3d 232, 359 N.E.2d 768). It was insufficient as a section 72 petition, and consequently we cannot find this appeal from the order allowing it to be an appeal from an order granting "relief prayed in a petition under section 72 of the Civil Practice Act" (Ill. Rev. Stat. 1977, ch. 110A, par. 304(b)(3)).

• 3 Moreover, we note that even if plaintiff's motion had been verified or supported by affidavit, it would have been insufficient to show due diligence — one of the requisites for section 72 relief (Bailey v. Twin City Barge & Towing Co. (1979), 70 Ill. App.3d 763, 388 N.E.2d 789; Reich v. Breed). Plaintiff's motion averred that his compliance with the request to produce had been prepared by the time of the dismissal but through inadvertence had not been mailed out by counsel. Although inadvertence of counsel does not necessarily excuse a default or bar its vacation (Reich v. Breed; Mieszkowski v. Norville (1965), 61 Ill. App.2d 289, 209 N.E.2d 358), other facts of record when combined with this inadvertence would have precluded a finding that plaintiff acted with due diligence in complying with the request to produce or in pursuing post-judgment relief. The record shows that plaintiff was served by mail with the motion to dismiss for failure to comply with the request to produce several weeks before the cause was dismissed and three months before he filed his compliance and the motion to set aside the dismissal. Plaintiff never asserted that he did not receive a copy of the motion to dismiss, and the motion itself clearly showed that plaintiff's cause was under attack for his failure to comply with discovery. Despite his apparent awareness of the discovery problem and the state of his cause, plaintiff made no attempt to keep abreast of the court's actions on the motion and did not file his compliance to the request to produce until months after the dismissal. Such actions belie a claim of due diligence. Rather, they indicate omissions on the part of counsel for which plaintiff is held accountable (Reich v. Breed; Danforth v. Checker Taxi Co. (1969), 114 Ill. App.2d 471, 253 N.E.2d 114). It is not section 72's intent to excuse one from the consequences of his own negligence (Reich v. Breed; Esczuk v. Chicago Transit Authority (1968), 39 Ill.2d 464, 236 N.E.2d 719); consequently, under these facts plaintiff would not have been entitled to section 72 relief even if he had filed a properly supported petition.

Since the present order is not appealable under Supreme Court Rule 304(b)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(b)(3)), we must determine whether the order is otherwise appealable. The general rule is that only final judgments or orders are appealable, unless the particular judgment or order comes within one of the specified exceptions set forth in the Supreme Court Rules. (Mexicali Club, Inc. v. Illinois Liquor Control Com. (1976), 37 Ill. App.3d 797, 347 N.E.2d 190; Browning v. Heritage Insurance Co. (1974), 20 Ill. App.3d 622, 314 N.E.2d 1.) Neither of the parties assert that the present order vacating the dismissal falls within any of the exceptions in the Rules, and our examination of the record also convinces us that no exception is involved. The question remains whether this order is appealable as a final order.

A final order for purposes of appeal is an order which disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part of it. (South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill.2d 119, 254 N.E.2d 448; Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App.3d 1053, 360 N.E.2d 458.) The general rule, at least when the motion to vacate is made within 30 days of the entry of judgment, is that a trial court's order vacating a prior judgment is not appealable because it leaves the merits of the case pending and, therefore, is not a final order. (Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App.3d 625, 373 N.E.2d 416; E.M.S. Co. v. Brandt (1968), 103 Ill. App.2d 445, 243 N.E.2d 695.) The facts of our case, however, present the question whether such an order is appealable if the motion to vacate is made after the prior judgment has become final and without obtaining jurisdiction in the trial court through section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72).

There is a line of old cases of our supreme court which appears to indicate that an order setting aside a prior judgment is interlocutory and non-appealable even if it was entered by a court without jurisdiction after the prior judgment has become final. (See City of Park Ridge v. Murphy (1913), 258 Ill. 365, 101 N.E. 524; Walker v. Oliver (1872), 63 Ill. 199; Cook v. Wood (1860), 24 Ill. 295.) However, we have traced this rule to its source and have discovered that the case which is cited as the seminal authority for this rule, Cook v. Wood (1860), 24 Ill. 295, did not decide the issue before us or establish such a rule. The pronouncements of the "later" cases (Walker and Murphy) were grounded in a misreading of Cook, and under these circumstances, we cannot say that such a rule of nonappealability was ever the law with respect to cases similar to the one at bar. We certainly do not deem these cases to be controlling here.

In City of Park Ridge v. Murphy, defendant Murphy, more than a year after judgment, made a motion in the trial court to set aside a default and vacate a judgment of confirmation on his land. The motion was granted and on review the supreme court dismissed the ...


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