Appeal from the Circuit Court of Wayne County; the Hon. Donald
E. Garrison, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This appeal involves an order entered in a proceeding to perpetuate testimony under Supreme Court Rule 217 (73 Ill.2d R. 217). Petitioner Ella Wells initiated the proceeding in question to preserve her testimony regarding certain lawsuits she anticipated would be filed after her death, among them a contest of her will and a suit charging one of her daughters, Mary Frye, with maliciously interfering with the expectancy of Mrs. Wells' other natural heirs of receiving bequests from Mrs. Wells upon her death. During the course of her deposition, petitioner Wells refused to testify concerning the contents of her will, whereupon respondents-appellants, certain of her children and grandchildren, filed a motion to compel testimony on this issue. The trial court entered an order in which it found that information as to the contents of Mrs. Wells' will was protected from disclosure under the attorney-client privilege and that petitioner Wells had not waived this privilege by filing her petition to perpetuate testimony. Respondents-appellants appeal from that order, contending that the trial court erred in its interpretation of the attorney-client privilege in the context of the instant Rule 217 proceeding. We find, however, that the order appealed from does not constitute a final judgment in this case, and we accordingly dismiss the instant appeal for lack of jurisdiction.
Ella Wells filed her petition to perpetuate testimony on March 20, 1982, after her attorney received a letter from counsel for respondents-appellants. In that letter counsel advised Mrs. Wells' attorney that his clients were contemplating filing suit against Ella Wells and her daughter, Mary Frye. The proposed complaint, a copy of which was attached to the letter, contained four counts, three of which sought to have a conveyance of a mineral interest from the grandchildren to Mrs. Wells declared null and void and a fourth which sought actual and punitive damages from Mary Frye for allegedly exercising undue influence over her mother for the purpose of obtaining a greater share of the estate of Ella Wells than she would otherwise receive. In his letter counsel for respondents-appellants requested that the contents of Mrs. Wells' will be made known to his clients so that an arrangement could be reached which would make it unnecessary to file the proposed suit. Counsel further stated that if the matter could not be resolved satisfactorily prior to the death of Ella Wells and if her testamentary disposition unfairly favored Mary Frye, it was the intention of his clients to bring suit against her on that basis.
On May 3, 1982, after Mrs. Wells' Rule 217 petition had been filed and served upon her children and grandchildren as respondents, counsel for respondents-appellants advised the court that the proposed four-count complaint had been filed against the petitioner and Mary Frye in the circuit court. Counsel requested the court to dismiss Mrs. Wells' petition to perpetuate testimony since the anticipated underlying suit had already been filed. The trial court denied this motion and granted Mrs. Wells' petition to perpetuate testimony.
Ella Wells' deposition was taken pursuant to her petition on June 9, 1982. She testified on direct examination regarding the circumstances surrounding the execution of her will and a codicil thereto. She stated specifically that she had never discussed the provisions of her will with her daughter Mary Frye and that her daughter had never suggested that she (Mrs. Wells) leave any part of her property to Mary.
Upon cross-examination counsel for respondents-appellants asked Mrs. Wells the following question:
"In your will, do you provide that your children should share your property substantially equally?"
Mrs. Wells' attorney objected to the question and instructed his client not to answer any questions concerning the contents of her will. Counsel for respondents-appellants then certified the question to the trial court for a ruling on the objection. After hearing arguments of counsel, the trial court denied the respondents-appellants' motion to compel discovery from petitioner as to her proposed testamentary disposition. The court's order, entered June 24, 1982, stated in pertinent part:
"The contents of the will of Ella Wells are relevant to the issue of whether the disposition of her assets at her death as set forth in his [sic] will are in accordance with her wishes and independent of any request or influence of Mary Frye. However, the contents of the will of Ella Wells are subject to the attorney-client privilege; Ella Wells' filing of Petition to Take Deposition to Perpetuate her Testimony is not a waiver of her attorney-client privilege.
Accordingly, Counsel Harvey's objection at the Deposition to Perpetuate Testimony is sustained and the Motion to Compel Discovery from Petitioner is denied."
Ella Wells died on June 28, 1982, and her executor, Mary Frye, was substituted as petitioner in the cause. On July 23, 1982, respondents-appellants filed their notice of appeal from the court's order of June 24.
In addressing the issue of this court's jurisdiction to hear the instant appeal, we note that we previously denied a motion to dismiss the appeal for lack of a final judgment. This ruling, however, does not preclude our consideration of the jurisdiction issue which has been further briefed by the parties on appeal. See 21 C.J.S. Courts> sec. 195 (1940).
On the issue of the appealability of the court's order, respondents-appellants contend that the Rule 217 proceeding in question constituted a separate and independent proceeding which was effectively terminated by the court's order of June 24. As such, they assert, the order was a final judgment subject to appeal under Supreme Court Rule 301 (73 Ill.2d R. 301). Respondents-appellants cite no authority for their contention but rather seek to distinguish the effect of the court's order in the instant Rule 217 proceeding from that of a similar order as to discovery matters in a cause being prepared for trial. While the latter order would be subject to review upon appeal from a final judgment in the pending cause, such review would, they say, be foreclosed in a Rule 217 proceeding to perpetuate testimony in a suit which had not yet been filed. Respondents-appellants contend that this is especially so in the instant case where the petitioner sought to testify as to matters relevant in a lawsuit which could only be filed after her death. Since, under the court's order, respondents-appellants would be forever denied the right to cross-examine the petitioner concerning the contents of her will, they contend that the order must be considered as fully adjudicating the rights of the parties to the controversy before the court.
• 1-3 Whether an order constitutes a "final judgment" for purposes of Rule 301 must be determined upon a consideration of the specific nature of the controversy and the effect of the order upon that controversy. (People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App.3d 675, 281 N.E.2d 757.) An order is final if it terminates the litigation on the merits and determines the rights of the parties so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App.3d 625, 373 N.E.2d 416.) Generally, orders entered pursuant to discovery rules are interlocutory and not immediately appealable because, as preliminary orders in a pending case, they are reviewable on appeal from the final order in that case. (People ex rel. Scott v. Silverstein (1981), 87 Ill.2d 167, 429 N.E.2d 483; see Johnston, Discovery in Illinois and Federal Courts>, 15 J. Mar. L. Rev. 1, at 70-73 (1982).) Where, however, a discovery order finally concludes a proceeding begun against a witness, the order is final, though entered in the context of another proceeding, due to the separate and independent nature of the proceeding involved. (See, e.g., People ex rel. Scott v. Silverstein: contempt order imposing sanctions for failure to comply with discovery order is final because contempt proceeding is collateral to and independent of case in which contempt arises; Laurent v. Brelji (1979), 74 Ill. App.3d 214, 392 N.E.2d 929: order compelling discovery in aid of administrative agency's investigations is final because discovery ...