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May 8, 1995


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 93-LM-7445. Honorable Robert C. Lorz, Judge Presiding.

Present - Honorable Allan L. Stouder, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice

The opinion of the court was delivered by: Stouder

PRESIDING JUSTICE STOUDER delivered the opinion of the court:

Defendant, James C. Adrian, appeals from a judgment issued by the circuit court of Will county denying defendant's motion to dismiss plaintiff's first amended complaint. We hold there is no jurisdiction to hear this appeal.

Plaintiff, Saddle Signs, Inc., filed a breach of contract action against defendant. Plaintiff's complaint essentially alleged that the parties entered into an advertising display agreement and after several months defendant had owed plaintiff $3,700.00 under the terms of that agreement. Consequently, the parties terminated the contract and plaintiff commenced this lawsuit.

Defendant alleged he was not personally liable under the agreement because he signed it in his capacity as president of Saddle Club Inc. Consequently, defendant filed a motion for judgment on the pleadings or dismissal of plaintiff's complaint. The trial court denied this motion and granted defendant leave to file a motion for summary judgment. On December 16, 1993, plaintiff filed his first amended complaint. Defendant did not file a motion for summary judgment. However, he did file a motion to dismiss plaintiff's first amended complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1992).) Not to be outdone, plaintiff filed his own motion entitled "Plaintiff's Cross Motion for Partial Summary Judgment on Liability" on May 25, 1994. On June 14, 1994, the trial court denied defendant's motion to dismiss as well as plaintiff's motion for summary judgment and set the case for trial. However, on the same day, plaintiff filed a motion for voluntary non-suit pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West 1992)) for the purpose of refiling his claim with a jury demand. The trial court granted plaintiff's motion. Defendant then filed his notice of appeal.

In his statement of jurisdiction, defendant states:

"Jurisdiction of this appeal to the Appellate Court of the Third Judicial District is based on the entry of an Order denying Defendant's Motion to Dismiss First Amended Complaint [sic] and the subsequent voluntary dismissal of the cause by Plaintiff, Saddle Signs, for the purpose of Plaintiff filing a new case against Defendants with a jury demand in accordance with Illinois Supreme Court Rule 303."

Neither party has objected to the jurisdiction of this court. However, we have determined to consider the issue on our own motion.

A reviewing court must inquire into its jurisdiction and must decline to proceed in the cause where jurisdiction is lacking. ( City Wide Carpet Inc. v. John (1980), 83 Ill. App. 3d 538, 404 N.E.2d 465, 39 Ill. Dec. 81.) The parties cannot, either by failing to raise the question or by consent, confer jurisdiction to review an order if in fact the order appealed from is not appealable. Liberty National Bank of Chicago v. City of Chicago (1951), 342 Ill. App. 328, 96 N.E.2d 663.

Defendant, in reality, is claiming jurisdiction pursuant to Supreme Court Rule 301. (Official Reports Advance Sheet No. 26 December 22, 1993, R. 301, eff. February 1, 1994.) However, subject to statutory exceptions, this rule only confers jurisdiction to review final judgments. ( Maple Investment & Development Corp. v. Skore (1976), 38 Ill. App. 3d 654, 348 N.E.2d 498.) A final judgment, for the purposes of determining whether the trial court judgment is appealable, is one which fixes, determines, and disposes of the parties' rights regarding litigation on some definite, separate part of litigation. Madison Mutual Insurance Co. v. Universal Underwriters Group (1993), 251 Ill. App. 3d 13, 621 N.E.2d 270, 190 Ill. Dec. 401.

Applying these rules to the trial court's denial of defendant's 2-619 motion, we conclude this court has no jurisdiction to hear the appeal. However, the troubling issue presented by this case is whether a plaintiff's voluntary dismissal makes an otherwise nonappealable judgment appealable. In other words, whether we may consider the trial court's denial of defendant's motion to dismiss pursuant to section 2-619 of the Code simply because the trial court granted plaintiff's voluntary dismissal. We believe the voluntary dismissal did not confer jurisdiction.

First, we note the denial of a motion to dismiss is not a final and appealable judgment. ( People v. American National Bank & Trust Co. (1965), 32 Ill. 2d 115, 203 N.E.2d 897.) Furthermore, the denial of defendant's motion to dismiss does not fall within the purview of any of the Supreme Court Rules concerning interlocutory appeals. Consequently, the only possible jurisdictional basis from which this appeal may be heard is through section 2-1009 of the Code.

Plaintiff is generally entitled to voluntarily dismiss his case at any time before trial or hearing begins. ( Riblet Products Corp. v. Starr National (1993), 242 Ill. App. 3d 988, 611 N.E.2d 68, 183 Ill. Dec. 215; But see Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, 129 Ill. Dec. 93 (a trial court may hear and decide a motion which has been filed prior to a section 2-1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.) Plaintiffs' motivations for utilizing this rule are irrelevant. ( Estate of Jackson v. Smith (1987), 183 Ill. App. 3d 663, 541 N.E.2d 1117, 133 Ill. Dec. 679.) Furthermore, plaintiffs' absolute right to voluntary dismissal without prejudice is not affected by any hardship to the defendant. ( Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E.2d 723, 109 Ill. Dec. 62.) Finally, we note the most common uses for this rule are to enable plaintiffs to correct technical errors in their pleadings. ( Kern v. Peabody ...

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