Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Illinois Bell Telephone Co. v. Purex Corp.

OPINION FILED NOVEMBER 12, 1980.

ILLINOIS BELL TELEPHONE COMPANY, PLAINTIFF-APPELLANT,

v.

PUREX CORPORATION, LTD., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.

MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

This action was brought by the Illinois Bell Telephone Company (Illinois Bell) to recover for property damage to its underground cables allegedly caused by the negligent acts of the defendant, Purex Corporation, Ltd. (Purex). After Illinois Bell presented its case, Purex rested without presenting evidence and moved for a directed verdict. The trial court directed a verdict in the defendant's favor. The plaintiff's post-trial motion was denied and the plaintiff appeals.

Three issues are presented for review: (1) whether the trial court erred in directing a verdict against Illinois Bell; (2) whether the trial court erred in ruling on certain evidentiary matters; (3) whether Illinois Bell should be granted a new trial on the question of causation only. In addition, the defendant alleges that this court lacks jurisdiction because no appeal has been taken from a final judgment.

We first address the defendant's jurisdictional argument. The defendant contends that this court lacks jurisdiction to entertain this appeal because the plaintiff's notice of appeal does not purport to be from the final judgment entered on November 2, 1978, and because the relief sought by the plaintiff was not a reversal of that judgment.

The plaintiff's notice of appeal reads as follows:

"Plaintiff, ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, hereby appeals from the Order of the Circuit Court of Cook County, Illinois, dated March 19, 1979, denying plaintiff a new trial on the issue of proximate cause only, and further, denying the plaintiff a new trial on all the issues.

Plaintiff * * * prays that the Appellate Court grant a new trial on the issue of proximate cause only and enter judgment in favor of ILLINOIS BELL on the issue of damages and the other issues of liability. Alternatively, the plaintiff prays that the Appellate Court grant a new trial on all issues, and to order such further relief with respect to trial errors as the Court deems appropriate."

The March 19, 1979, order of the Circuit Court of Cook County, referred to in the plaintiff's notice of appeal, was an order denying the plaintiff's post-trial motion for a new trial.

• 1, 2 Appeals in civil cases, with certain exceptions not material here, may be had only from final judgments. (English v. English (1979), 72 Ill. App.3d 736, 393 N.E.2d 18; Ill. Rev. Stat. 1977, ch. 110A, par. 301.) An order overruling a motion for a new trial is not a final appealable order. (Robson v. Pennsylvania R.R. Co. (1949), 337 Ill. App. 557, 86 N.E.2d 403.) Therefore, the defendant argues that the plaintiff did not appeal from a final judgment and this court therefore has no jurisdiction to hear this appeal.

We reject the defendant's argument. In LeMenager v. Northwestern Barb Wire Co. (1938), 296 Ill. App. 568, 16 N.E.2d 824, a case cited by the defendant, this court lacked jurisdiction because no final judgment order had been entered prior to the filing of the notice of appeal. City of Palos Heights v. Village of Worth (1975), 29 Ill. App.3d 746, 331 N.E.2d 190, held that the appeal was properly brought from the final judgment order and the notice of appeal was not insufficient because it did not mention a subsequent order which denied the appellant's post-trial motion to vacate.

The defendant also cites Robson v. Pennsylvania, which actually is support for a determination by this court that we have jurisdiction of this appeal. In Robson a final judgment had been entered on June 3, 1948. The plaintiff's subsequent motion for a new trial was denied on June 28, 1948. This denial included surplusage that directed that judgment be entered on the verdict. The plaintiff's notice of appeal recited that it was appealing from the judgment in favor of the defendant "made final by the order entered June 28, 1948, overruling the plaintiff's motion for a new trial." The defendant in that case argued that the June 28, 1948, order had the office only of overruling a motion for a new trial and thus was not a final appealable order. This court rejected the defendant's argument and held it was apparent that the plaintiff's appeal was from the judgment entered on June 3, 1948, which was the only judgment entered and not from the order denying his motion for a new trial.

• 3 We agree with the Robson decision. While the plaintiff's notice of appeal in the instant case should have specified the final judgment entered on November 2, 1978, instead of the March 19, 1979, order denying the plaintiff's motion for a new trial, we will not dismiss this appeal because of an "error of form" since there was a final judgment in the case. Luner v. Gelles (1942), 314 Ill. App. 659, 42 N.E.2d 313.

• 4 The defendant also argues that this court lacks jurisdiction to set aside the judgment entered November 2, 1978, because the only relief sought by the plaintiff in its notice of appeal was a new trial. Supreme Court Rule 303(c)(2) requires that a notice of appeal specify the judgment or part thereof appealed from and the relief sought. (Ill. Rev. Stat. 1977, ch. 110A, par. 303(c)(2).) The purpose of this requirement is to advise the successful party of the judgment complained of and the relief sought, and the absence of a strict or technical compliance with the form of the notice is not fatal. (Mooring v. Village of Glen Ellyn (1978), 57 Ill. App.3d 329, 373 N.E.2d 35.) The failure to include a certain prayer for relief in the notice of appeal is merely an error in form and not an error of substance and the appellate court does not lose its jurisdiction by technical errors of this sort where an appellee is not otherwise prejudiced. Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App.3d 842, 365 N.E.2d 390.

• 5 Applying these principles to the case at bar, we hold that the plaintiff's notice of appeal contained an error of form rather than of substance and that the defendant was not prejudiced thereby. The defendant was clearly informed that the plaintiff was seeking a new trial and, inferentially, a vacation of the prior judgment since a new trial could not be granted unless the final judgment ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.