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Robertson v. Robertson





Appeal from the Circuit Court of Montgomery County; the Hon. William D. Kelly, Judge, presiding.


JUSTICE KARNS delivered the opinion of the court:

Plaintiffs are defendant Orville J. Robertson's former wife from his second marriage and their five children. They appeal from a judgment of the circuit court of Montgomery County, sitting without a jury, denying in its entirety their claim brought to set aside certain conveyances which were alleged to have prevented them from collecting the full amount of another judgment of the same court for child support. The complaint filed by the plaintiffs in the present suit alleged, inter alia, fraudulent conduct on the part of each defendant in a series of title transfers, two of which occurred before and two of which occurred after the parties were divorced, so as to defeat Erma's marital rights. Each disputed conveyance relates to an approximately 48-acre parcel of land located in Montgomery County.

Defendant Clara A. Robertson is Orville's mother. She was unable to testify in the instant proceeding because of incompetency. Defendant Helen V. Robertson is Orville's first and current wife with whom he resides in El Paso, Texas. She presently holds record title to the property in question except for two lots which she holds in joint tenancy with defendants Geneva and Everett Neathery, Orville's sister and brother-in-law.

Defendants' motion to dismiss this appeal was taken with the case and is based on plaintiffs' alleged failure to file a timely notice of appeal. The parties have argued various points relating to the nature and effect of a record sheet entry made by the trial court dated August 25, 1982. Defendants contend that the entry is a final judgment from which an appeal must have been prosecuted within the time limit set out in Supreme Court Rule 303 (87 Ill.2d R. 303), and plaintiffs' failure to do so requires dismissal of this appeal. Plaintiffs contend that the entry was not a final judgment and, even if it were, the facts of this case warrant special consideration to permit their right to appeal nonetheless.

The trial court took the case under advisement following a trial on the merits in April 1982. Briefs were submitted in May and June. The disputed record sheet entry reflects that reasoned consideration was given to testimony, exhibits, briefs and arguments of counsel. After almost three years of protracted litigation, the court concluded: "[T]he Plaintiffs [sic] claim is denied in its entirety at the plaintiffs [sic] cost; clerk to notify counsel of courts> [sic] decision." Immediately following this entry, dated August 25, 1982, is the following entry: "12/28/82 Copies sent."

On January 17, 1983, plaintiffs filed a motion to vacate and re-enter judgment alleging that neither counsel had any knowledge whatsoever of the court's decision of August 25 until after the clerk sent copies on December 28. A hearing on plaintiffs' amended motion to vacate was held on January 24, 1983. Counsel for plaintiffs filed a supporting affidavit and a stipulation which recited the lack of notice. The parties also agreed that plaintiffs' counsel made several attempts in September and thereafter to determine the status of the case. Following arguments of counsel, the court denied plaintiffs' motion. Plaintiffs' notice of appeal was filed January 26, 1983, and was directed to the August 25 and January 24 orders.

While plaintiffs question the finality of the August 25 order, the words used by the court make it clear in whose favor the judgment was entered, and it terminated the litigation.

• 1 While the order of the court was brief, lacking in form and not a model of clarity, it nevertheless bears sufficient indicia to indicate that the court was entering a final order. The order recited that plaintiffs' "claim is denied in its entirety." We think the denial of a "claim" is to be equated with the dismissal of a "cause" or a "cause of action," both of which terms have been found to be sufficient to denote finality in an order. (Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App.3d 981, 400 N.E.2d 724; Bates v. Ulrich (1976), 38 Ill. App.3d 203, 347 N.E.2d 286; Kita v. YMCA (1964), 47 Ill. App.2d 409, 198 N.E.2d 174.) Additionally, the order assessed costs against the plaintiffs, an event that generally accompanies the entry of a judgment or final order. The court's omission of proper possessive case apostrophes does not create any ambiguity, as alleged. Each plaintiff's claim was the same and each one was implicitly denied. Supreme Court Rule 304 (87 Ill.2d R. 304) is inapplicable. Nor does omission of the words "order," "adjudged," or "decreed" affect the validity or finality of the judgment. Further, plaintiffs have cited no Illinois authority to support their theory requiring the signature rather than the initials of the judge to render the judgment effective. No statute or Supreme Court Rule provides for a judicial signature or initials to a judgment and, indeed, Supreme Court Rule 272 (87 Ill.2d R. 272) gives express recognition to the fact that a final judgment may be rendered without the signature of the judge. In any event here there is no dispute about who entered the August 25 judgment on the record sheet. The judge's initials appear beside the entry. In short, plaintiffs' arguments attacking the form of the judgment are without merit. The order terminated the litigation between the parties on the merits of the cause so as to leave no doubt the order was a final judgment. Flores v. Dugan (1982), 91 Ill.2d 108, 435 N.E.2d 480; see Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 48, 146 N.E.2d 371, 372, and cases cited therein.

• 2 Supreme Court Rule 303(a) provides that "the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a non-jury case, within 30 days after the entry of the order disposing of the motion." (87 Ill.2d R. 303(a).) The record does not establish lack of diligence on the part of plaintiffs' attorney. To the contrary, the parties agreed that plaintiffs' counsel made several attempts in September and thereafter to determine the status of the case, although the nature of those attempts is not described. The case was taken under advisement some months before the judgment was entered. Both parties could expect notification of the court's judgment. The court directed the clerk to send copies of the judgment. Through no fault of either side, both learned of the judgment four months after its entry. These facts bring the case within the rule explained and relied upon in our case of Commonwealth Loan Co. v. Baker (1966), 67 Ill. App.2d 359, 214 N.E.2d 904, that a judgment is not rendered until such time as it is rendered in public situs of the case. The Commonwealth Loan case followed, in part, the supreme court case of People ex rel. Schwartz v. Fagerholm (1959), 17 Ill.2d 131, 161 N.E.2d 20, an opinion that predated the adoption of Rule 272. The Fagerholm case, in discussing where, when and how a judgment or decree was entered, held that the judge's decision in a case must be expressed publicly, in words, and at the situs of the proceedings before it will be considered a rendition of a judgment. At the time the case was decided, a judgment at law became effective when it was orally pronounced in court. In equity, the mere oral pronouncement of the decision was of no effect until the decree was reduced to writing, approved by the chancellor and filed for record. The time and manner of entry of a decision in a declaratory judgment action was made to depend upon whether the requested relief was legal or equitable in nature. Supreme Court Rule 272 was adopted to make uniform the rendition of decisions in actions both legal and equitable. However, the Rule addressed only the time and manner of entry of a final judgment, whether at law or in equity. Thus, Rule 272 made no change in the Fagerholm rule that a judgment must be rendered in public at the situs of the case. In the case under consideration there is no question under Rule 272 that the manner of rendition of the judgment was by a record sheet (docket) entry and that no written judgment was to be prepared and submitted.

Commonwealth Loan Co. v. Baker (1966), 67 Ill. App.2d 359, 214 N.E.2d 904, was a garnishment action by a judgment creditor to reach funds of a debtor allegedly held by his employer. A hearing was held on July 9. The judge took the case under advisement and took the docket sheet and court file into his chambers, where they remained until November 5 or 6. It was undisputed that plaintiff's attorney made inquiry of the clerk on several occasions to determine whether there had been any decision in the case, always to learn that the file and docket sheet had not been returned. Finally, on November 5 the attorney contacted the judge concerning the case, and on that day or the next the file and docket sheet were returned to the clerk's office. It was then that plaintiff's attorney learned that judgment had been entered against his client by an entry on the docket sheet made by the judge on July 22. It was further learned that the garnishee-defendant, defendant's employer, had somehow learned of the judgment and after 30 days had delivered the funds in question to the defendant. The garnishee-defendant moved against plaintiff's appeal because the notice of appeal had not been filed within 30 days after the entry of the judgment. This court, following the Fagerholm case, held that the judgment had not been rendered until November 5 or 6 when the court file and docket sheet had been returned to the clerk's office and thereby made public. We stated:

"A clerk has no more license or duty to invade the privacy of the Judge's Chambers to determine if judgment has been rendered, than have counsel for the litigants. * * * The rendering of a judgment is not and must not be a secret process, it must be a public act. To hold otherwise would destroy public confidence in the entire judicial system." 67 Ill. App.2d 359, 367, 214 N.E.2d 904, 908.

The facts of the case under consideration make the Commonwealth Loan case particularly apt. Here, the plaintiffs' attorney made several attempts in September and thereafter to determine the status of the case, to no avail. It appears from the record that neither of the parties had any knowledge of the August 25 judgment until the clerk, on December 28, sent copies to them. From those facts and from the requirement of sections 14 and 15 of "An Act to revise the law in relation to clerks of courts>" (Ill. Rev. Stat. 1981, ch. 25, pars. 14, 15) (circuit clerk is required to enter of record all judgments as soon after rendition as practicable and is to be adjudged guilty of a petty offense for his failure to do so within 45 days from rendition), we presume that the judgment of August 25 was not made public, and accordingly not rendered, until on or shortly before December 28, the date the notices were sent by the clerk as directed by the judgment. Accordingly, the judgment was not effective for purposes of appeal until its rendition and entry were pronounced by the court through the clerk's notice on December 28. After learning in January that judgment had been entered, plaintiffs filed their post-trial motion.

For the foregoing reasons we believe plaintiffs have filed a timely notice of appeal after the denial of their post-trial motion which was filed within 30 days after the August 25 judgment which ...

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