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10/23/87 W. W. Jaffke Et Al., v. Richard W. Anderson

October 23, 1987

W. W. JAFFKE ET AL., PLAINTIFFS-APPELLANTS

v.

RICHARD W. ANDERSON, D/B/A ANDERSON FUNERAL HOME, ET AL., DEFENDANTS-APPELLEES. -- W. W. JAFFKE ET AL., PLAINTIFFS-APPELLEES,

v.

RICHARD W. ANDERSON, D/B/A ANDERSON FUNERAL HOME, DEFENDANT AND CROSS-APPELLANT (NORTHERN



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Illinois Funeral Directors

Association et al., Defendants)

Nos. 2-86-0844, 2-86-0865 cons.

515 N.E.2d 345, 162 Ill. App. 3d 290, 113 Ill. Dec. 536 1987.IL.1582

Appeal from the Circuit Court of De Kalb County; the Hon. Richard D. Larson, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

In these separate appeals, which we have consolidated for opinion, plaintiffs, W. W. Jaffke, Arlene Jaffke and Trinity Memorial Corporation, appeal from that portion of an order entered on August 21, 1986, which denied plaintiffs' motion to file a separate complaint against certain of the defendants or to sever misjoined actions. In his cross-appeal, defendant Richard Anderson, d/b/a Anderson Funeral Home, seeks reversal of that portion of the August 21 order which denied defendants' motion to strike or dismiss plaintiffs' motion to amend their complaint.

This action was commenced in May 1984, when plaintiffs filed a 10-count complaint against eight separate defendants in which plaintiffs sought the recovery of damages and injunctive relief on a number of different theories. As against those five parties to whom we will refer as the funeral home defendants, plaintiffs alleged claims sounding in slander, antitrust violations, intentional interference with contract, intentional infliction of emotional distress and loss of consortium for which they sought damages and injunctive relief. As against those three parties to whom we will refer as the newspaper defendants, plaintiffs alleged claims for libel and slander. On September 18, 1985, upon motion of defendants, the trial court dismissed plaintiffs' complaint on grounds of misjoinder and multifariousness, without leave to amend. On October 10, 1985, plaintiffs filed a motion to vacate the order dismissing their complaint, which was denied on October 28, and plaintiffs were given 28 days in which to file a motion to amend the complaint.

On November 20, 1985, plaintiffs tendered to the trial court two separate pleadings, the first entitled "Amended Complaint," bearing the trial court number of the original complaint, and the second entitled "Complaint," which was not numbered. The "Amended Complaint," which is found in the record of this case, contains seven counts directed against the funeral home defendants alleging claims similar to those of the original complaint, but excludes those counts originally directed against the misjoined newspaper defendants. The "Complaint," which we do not find in the record, was described by the trial Judge as containing three counts alleging libel against only the newspaper defendants. Plaintiffs sought leave to file both complaints in this action and to sever the complaint containing the counts against the newspaper defendants which the court had found to be misjoined.

Defendants moved to strike and dismiss plaintiffs' motion to file the separate complaints and their motion for severance. On August 21, 1986, the trial court denied defendants' motions to dismiss, granted leave to plaintiffs to file their amended complaint directed to the funeral home defendants, and denied severance or leave to file in this case the complaint directed to the newspaper defendants. In its order, the trial court also found there was no just reason to delay enforcement or appeal. 107 Ill. 2d R. 304(a).

We consider first the cross-appeal of defendant Richard Anderson, d/b/a Anderson Funeral Home, from that portion of the order denying this defendant's motion to strike or dismiss plaintiffs' motion to file the complaints and sever the actions.

The appellate court lacks jurisdiction to entertain an appeal from an order which is not final unless it comes within one of the exceptions contained in Supreme Court Rules 306 through 308 (107 Ill. 2d Rules 306 through 308), and it is apparent none of the exceptions apply here. The portion of the order appealed from by this defendant is not final, as it did not terminate the litigation or some definite portion of it. It has often been held that an order denying a motion to strike or dismiss is not final and appealable. (People v. American National Bank & Trust Co. (1965), 32 Ill. 2d 115, 117, 203 N.E.2d 897; In re Marriage of Wass (1981), 94 Ill. App. 3d 436, 439, 419 N.E.2d 32.) It is also well-established that a special finding by the trial court pursuant to Supreme Court Rule 304(a) will not confer appellate jurisdiction ...


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