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Mau v. Unarco Industries

OPINION FILED APRIL 24, 1985.

GENEVA EILEEN MAU, INDIV. AND AS ADM'R OF THE ESTATE OF WILLIAM ROBERT MAU, SR., DECEASED, PLAINTIFF-APPELLANT,

v.

UNARCO INDUSTRIES, INC., ET AL., DEFENDANTS (NORTH AMERICAN ASBESTOS CORPORATION, DEFENDANT APPELLEE). — JERRY SAMPSON, ADM'R OF THE ESTATE OF RAY SAMPSON, DECEASED, PLAINTIFF-APPELLANT,

v.

NORTH AMERICAN ASBESTOS CORPORATION ET AL., DEFENDANTS-APPELLEES (UNARCO INDUSTRIES, INC., ET AL., DEFENDANTS).



Appeal from the Circuit Court of McLean County; the Hon. James A. Knecht and the Hon. Luther H. Dearborn, Judges, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

JUSTICE TRAPP delivered the opinion of the court:

These consolidated appeals raise a legal issue which this court previously addressed in Handley v. Unarco Industries, Inc. (1984), 124 Ill. App.3d 56, 463 N.E.2d 1011. We reaffirm our holding in Handley and reverse the summary judgment entered for the defendants in cause No. 4-82-0157 (the Mau appeal). In cause No. 4-84-0511 (the Sampson appeal), we do not reach the merits, but dismiss the appeal for lack of appellate jurisdiction.

In December 1978, Delora Stewart filed two actions in the circuit court of McLean County, cause Nos. 78-L-201 and 78-L-202, for injuries allegedly produced by exposure to asbestos. Named as defendants in these actions (the Stewart actions) were several suppliers and processors of asbestos, including the defendants in the instant appeals, and Cape Industries Limited, Cape Asbestos Fibers Limited, and Egnep (Pty) Limited. Delora Stewart filed both suits in her individual capacity and on behalf of all others similarly situated.

On June 19, 1979, an order of default was entered in the Stewart actions against Cape Industries Limited, Egnep (Pty) Limited, and Cape Asbestos Fibers Limited (the Cape group). Shortly thereafter, on June 27, 1979, the defendants in the instant appeals were voluntarily dismissed from the Stewart actions without prejudice. The cause proceeded to a trial on damages as to the defaulting parties in January 1982. Mau and Sampson, plaintiffs in the instant appeals, both entered their appearances and participated in the prove-up of damages. Each was awarded substantial compensatory damages and punitive damages in the Stewart action.

Geneva Mau filed a separate action against the defendants and others in No. 79-L-107 on May 29, 1979. Ray Sampson filed his own action against the defendants and others in No. 80-L-36 on February 20, 1980. Following the entry of final judgment in the Stewart actions, the defendants in the instant appeals moved for summary judgment in the separate actions brought by Mau and by Sampson. In both cases, the trial court granted judgment for the defendant on the theory that the plaintiffs had abandoned any claims against the other alleged joint tortfeasors when they chose to take judgment against the defaulting parties in Nos. 78-L-201 and 78-L-202. Subsequent motions to vacate the summary judgments were denied in each case.

The background of the present appeals is essentially identical to that which was before this court in Handley. The plaintiffs in Handley, as the plaintiffs in the instant appeals, were not named plaintiffs nor certified class members in the Stewart actions, but they participated in the trial on damages in the Stewart suit. The plaintiffs in Handley, as those in the present appeals, were awarded compensatory and punitive damages against the defaulting parties in Nos. 78-L-201 and 78-L-202. Moreover, the summary judgments challenged in Handley and those challenged here in the Sampson appeal were effected by a single written order, which indicated that the rationale supporting the judgments in the Handley, Sampson, and Mau cases was the same. In each case, Judge Knecht determined that the taking of a judgment against a joint tortfeasor in a case where several are sued operates to discontinue the suit against all other defendants and bar further action against them.

• 1 In No. 4-82-0157, the Mau appeal, our opinion in Handley plainly controls. We disagree with the trial court's determination that taking a judgment against the Cape group in Nos. 78-L-201 and 78-L-202 amounted to a dismissal of the case against the defendants. The dicta in Davis v. Taylor (1866), 41 Ill. 405, which would appear to support the trial court's determination, is no longer viable, since the "unit judgment rule," which was the foundation for these statements in Davis, has long since been overruled. (See Chmielewski v. Marich (1954), 2 Ill.2d 568, 119 N.E.2d 247.) Our precise holding here, however, is that the principle suggested by the Davis dicta does not apply, since the defendants did not remain in the Stewart suits after judgment was taken against the Cape group; therefore, the defendants were not residue defendants in favor of whom implied dismissal could operate. The trial court erred in entering the summary judgments against Mau. We reverse and remand the judgment in No. 4-82-0157.

• 2 In No. 4-84-0511, we are unable to reach the merits, due to a jurisdictional defect in the appeal. Both Handley and the Mau appeal were received by this court pursuant to special findings of appealability made by the trial judge in accordance with Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)). No such finding was entered in the Sampson appeal. Summary judgment was entered for the defendants in this cause on May 18, 1982. This judgment did not conclude the litigation as to all parties and claims, however. Raybestos-Manhattan, Inc., one of the defendants named in the Sampson suit, was not dismissed from the action until May 4, 1983. Damages against the Cape group were not reduced to judgment until March 14, 1984. On April 13, 1984, Sampson filed a motion to vacate the summary judgment. The trial court denied this motion on June 22, 1984. On July 17, 1984, Sampson filed his notice of appeal.

We have previously noted that the trial court made no special finding of appealability under Supreme Court Rule 304(a) relating to the summary judgments. Appealability of the judgments hinges, therefore, upon compliance with Supreme Court Rule 303, which governs the appeals of final judgments which dispose of an entire proceeding. Rule 303(a)(1) provides that a notice of appeal generally must be filed within 30 days after entry of the final judgment appealed from, but, if a timely post-trial motion directed against the judgment is filed, commencement of the 30-day filing period is stayed until the order disposing of such a motion is entered. 87 Ill.2d R. 303(a)(1).

It is clear that Sampson did not file a notice of appeal within 30 days after entry of the judgment appealed from. The judgment disposing of the last party and claim in the case was entered on March 14, 1984; however, the notice of appeal was not filed until July 17, 1984. Moreover, the motion to vacate the summary judgments filed on April 13, 1984, cannot be construed as a timely post-trial motion, hence Sampson may not avail himself of the stay provision described by Rule 303(a)(1). In order to take advantage of the stay provision of the rule, it would have been necessary for Sampson to file the motion to vacate summary judgment within 30 days after the entry of the judgments challenged by the motion. (Wool v. La Salle National Bank (1980), 89 Ill. App.3d 560, 411 N.E.2d 1135.) This was not done.

The filing of a timely notice of appeal is mandatory and jurisdictional. (Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App.3d 395, 405 N.E.2d 418; Danaher v. Knightsbridge Co. (1978), 56 Ill. App.3d 977, 372 N.E.2d 862.) Absent a timely notice of appeal in the cause, this court is without jurisdiction; therefore, we are required to dismiss the appeal in No. 4-84-0511.

The judgments in No. 4-82-0157 are reversed and remanded. The appeal in No. 4-84-0511 is dismissed.

GREEN, P.J., and MILLS, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF ...


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