APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
An earlier appeal by plaintiffs from an order of the trial court dismissing a complaint for declaratory judgment was dismissed in the reviewing court for want of a timely notice of appeal. Here, defendants appeal from the order granting plaintiffs' section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) whereby the trial court vacated its previous judgment and reentered the identical judgment in order to allow a timely notice of appeal.
Defendants assert this is an improper use of section 72 and there were not sufficient facts alleged in the petition to entitle such relief. Plaintiffs filed a cross-appeal asserting that the dismissal of the complaint for declaratory judgment was improper. We find the section 72 petition was improperly granted and therefore do not reach the dismissal issue on cross-appeal.
On January 5, 1981, plaintiffs filed a complaint for declaratory judgment alleging that plaintiff, Town of Normal, a home-rule municipal corporation, was authorized by statute and the Illinois Constitution of 1970 to license establishments which sell alcoholic beverages. This authority was alleged to extend to licensing of such sale at Illinois State University, which was authorized to sell alcoholic liquors by Public Act 81-1160, incorporated into section 11 of article VI of the Liquor Control Act. (Ill. Rev. Stat. 1979, ch. 43, par. 130.) On January 19, 1981, defendants filed a motion to dismiss this complaint. The motion was granted and the order dismissing the complaint was filed on March 16, 1981.
Prior to the filing of this order, a letter from plaintiffs' counsel to the Sangamon County circuit clerk was filed. The letter stated:
"Enclosed please find a notice of appeal in Town of Normal v. Board of Regents et al. 81-CH-4. Please prepare the record in this case. I have sent Judge Friedman an order which is to be entered just before this notice in the chronology of the case."
The circuit clerk filed the notice of appeal on March 9, 1981, prior to the March 16 filing of the final order. The notice of appeal having been filed, the case came to this court where the appeal was dismissed due to lack of jurisdiction by order entered August 7, 1981 (4th Dist., Gen. No. 17057).
On September 24, 1981, plaintiffs filed a petition to vacate the order of dismissal entered by the trial court pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). In count I of this petition, plaintiffs alleged that, through no fault or negligence on the part of the petitioners, an order of dismissal was entered by the court through an error of fact. The alleged error of fact was that the order of dismissal was signed a week after it arrived in the judge's possession because the judge was on vacation, with the result that the order was signed and filed after the notice of appeal was on file. In count II of this petition, the same allegations are made, except that it is also alleged there was no final order of dismissal entered by the circuit court while it had jurisdiction to do so. This assertion is apparently based on the fact that the notice of appeal was already on file. Both counts contained the prayer that the court enter an order vacating and setting aside the order of dismissal and "either entering judgment for plaintiff in the original complaint or enter a new order of dismissal dated so that petitioner will be able to file a new notice of appeal * * *."
Among other affidavits, attorney for plaintiffs filed an affidavit stating the court had indicated its intent to dismiss the complaint; affiant decided not to amend the complaint because it stated a good cause of action; he sent the draft final order, approved by opposing counsel, to the court; he sent the notice of appeal along with the previously noted letter to the clerk of the circuit court; affiant had no knowledge the judge was going to be on vacation; through no fault of his own the judge signed the order when he returned from vacation; the notice of appeal was already on file; and affiant was not negligent in his activities.
The trial court's order dated October 20, 1981, stated that the order of March 16, 1981, was erroneously entered later than could reasonably have been expected under these circumstances because Judge Friedman's vacation was unknown to the parties, and therefore, the section 72 petition stated a valid cause of action and the March 16 order was vacated pursuant to section 72. The order then stated that plaintiffs' original complaint in declaratory judgment was defective because the Town of Normal does not have the power to license the University.
Section 72 of the Civil Practice Act enables a party to bring before the court rendering a judgment matters of fact not appearing in the record which, if known to the court at the time judgment was entered, would have prevented its rendition. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294.) Defendants assert there were no unknown pertinent facts alleged in the petition since the time the notice of appeal was filed was a matter of record. There are no facts alleged relating to the dismissal, and the petition specifically invited re-entry of the same order of dismissal.
• 1 We agree that where all relevant facts appear of record, and especially where re-entry of the same judgment is requested, section 72 relief is not appropriate.
• 2 The plaintiffs argue that the right to appeal should not be denied to a litigant under circumstances over which the litigant had little, if any, control, and cite People v. Jacobs (1975), 61 Ill.2d 590, 338 N.E.2d 161, People v. Aliwoli (1975), 60 Ill.2d 579, 328 N.E.2d 555, People v. Brown (1968), 39 Ill.2d 307, 235 N.E.2d 562 and People v. McManus (1978), 66 Ill. App.3d 986, 384 N.E.2d 568. These cases are plainly distinguishable and are not persuasive upon the issue here.
We note initially that no case cited involves the issue of perfecting an appeal by the filing of a timely notice — an action which is essential to establishing jurisdiction on appeal ...