Frank v. Salomon

• Citation: 34 N.E.2d 424,376 Ill. 439
• Decision Date: 04 June 1941
• Docket Number: No. 25996.,25996.
• Parties: FRANK v. SALOMON et al.
• Court: Supreme Court of Illinois

376 Ill. 439

34 N.E.2d 424

FRANK

v.SALOMON et al.

No. 25996.

Supreme Court of Illinois.

April 10, 1941.

As Modified on Denial of Rehearing June 4, 1941.

Suit by Charles G. Frank, trustee, against Walter A. Salomon and others to foreclose a trust deed, wherein certain of defendants filed a verified ‘motion in the nature of a writ of error coram nobis' to vacate all the proceedings subsequent to granting of plaintiff's motion for leave to amend, and asking leave to plead or answer. From a judgment of the Appellate Court for the First District dismissing an appeal from an order of the superior court of Cook county vacating a foreclosure decree and permitting defendants to plead or answer, 306 Ill.App. 582, 29 N.E.2d 301, the plaintiff appeals by permission.

Judgment of the Appellate Court reversed; order of the superior court reversed and cause remanded, with directions.Appeal from Appellate Court, First District, First Division; on Appeal from Superior Court, Cook County; Charles A. Williams, Judge.

Harry A. Biossat, of Chicago, for appellant.

William Friedman, of Chicago (Zeamore A. Ader and Sylvia J. Zelden, both of Chicago, of counsel), for appellees.

SMITH, Justice.

This cause is here on leave granted to appeal from a judgment of the Appellate Court for the First District, 306 Ill.App. 582, 29 N.E.2d 301, dismissing an appeal from an order of the superior court of Cook county vacating a foreclosure decree upon a petition under section 72 of the Civil Practice Act. The questions presented are whether the vacating order is a final order, and whether section 72 of the Civil Practice Act (Ill.Rev.Stat. 1939, chap. 110, par. 196) may be employed in chancery proceedings.

Appellant filed a complaint to foreclose a trust deed, among the makers of which were appellees' parents who were dead. The other two makers of the trust deed were living. They, and appellees as heirs and devisees of their parents, were made parties defendant, served with process, and a default decree was entered against them on September 3, 1936. During the same month, on appellant's motion, the decree was vacated. By leave of court, the complaint was amended, adding allegations that no inventory was filed in the estate of the parents of appellees within one year from the probate thereof, but were filed in the following year, and that creditors having claims could assert them. Unknown creditors of the decedents, and other parties alleged to claim interests in the premises, were added as defendants. The additional defendants were apparently served with process. They were defaulted and a new decree was entered finding, among other things, that appellant is entitled to recover from appellees, as heirs and devisees of their deceased parents, the value of all assets received by them from the two estates for any deficiency in case the proceeds of the sale were not sufficient to pay the amount of the decree. After the sale, a deficiency decree for $1,497.53 was entered on December 17, 1936, against the living makers of the bonds, with the same golding as to the liability of appellees, limiting it to personal assets received. The original decree made no finding of any liability of appellees.

On May 5, 1938, appellees filed a verified ‘motion in the nature of a writ of error coram nobis' to vacate all the proceedings subsequent to the granting of leave to amend, and asking leave to plead or answer. This puts the motion under section 72 of the Civil Practice Act, supra. The motion sets up that all the proceedings were without notice to anyone; that appellees had no knowledge thereof until April, 1938, and that they had paid out more for the estates than they had received. The motion was denied. On appeal, the Appellate Court held that section 72 applies to chancery proceedings, reversed the order and remanded the cause, with directions to permit appellees to answer the complaint as amended. Frank v. Newburger, 298 Ill.App. 548, 19 N.E.2d 147. We dismissed a petition for leave to appeal for want of a final judgment. Under the mandates, the trial court entered an order vacating the second decree and granted appellees leave to plead or answer. On a second appeal, the Appellate Court held the order appealed from was not final and dismissed the appeal. The first decision of the Appellate Court was not final and was not reviewable by this court. While the Appellate Court deemed that decision was binding upon it on the second appeal, it is not binding on this court in reviewing the latter decision. Stripe v. Yager, 348 Ill. 362, 180 N.E. 915;McLaughlin v. Hahn, 333 Ill. 83, 164 N.E. 148. Counsel for appellees confuse the character of the judgment of the Appellate Court on the first appeal with that of the subsequent order of the superior court vacating the decree of foreclosure. The Appellate Court fell into the same error. Appellant suggests, and we agree with him, that if there was no final order until the decree was vacated, when it was subsequently vacated the vacating order is a final order. Mitchell v. King, 187 Ill. 452, 55 N.E. 637,58 N.E. 310;Cramer v. Illinois Commercial Men's Ass'n, 260 Ill. 516, 103 N.E. 459;Central Bond & Mortgage Co. v. Roeser, 323 Ill. 90, 153 N.E. 732;People v. Green, 355 Ill. 468, 189 N.E. 500. The Appellate Court was, therefore, in error in dismissing the second appeal.

This brings up for consideration the question of whether section 72 of the Civil Practice Act applies to chancery proceedings. The question resolves itself into a determination of whether the Civil Practice Act abolishes all distinctions between actions at law and in chancery. At common law, and in this State prior to the enactment of the Civil Practice Act, a motion in the nature of a writ of error coram nobis could be employed only as to judgments at law. 1 Bouv.Law Dict., Rawle's Third Revision, 681; Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 65 N.E. 636, 638. In the Tosetti case, a decree was set aside on motion after the term and another decree was entered which was reversed by the Appellate Court whose judgment we affirmed. In that case this court said: ‘In an action at law the statute abolishing the writ of error coram nobis, and substituting therefor a motion, authorizes the court to set aside a judgment at any time within five years for an error of fact that came within the scope of the writ as it existed at common law. * * * The statutory motion does not apply to cases in chancery. * * * The proper method of impeaching and setting aside a decree after the term is to file an original bill in the nature of a bill of review, when such decree may be set aside, reversed, or modified, according to the equities of the parties.’ We reaffirmed this holding in Madison & Kedzie State Bank v. Cicero-Chicago Corrugating Co., 351 Ill. 180, 184 N.E. 218,Wilson v. Fisher, 369 Ill. 538, 17 N.E.2d 216, and Harris v. Chicago House Wrecking Co., 314 Ill. 500, 145 N.E. 666. In Jacobson v. Ashkinaze, 337 Ill. 141, 168 N.E. 647, we held the essentials of the proceeding under the statute are the same as they were at common law.

The title of the Civil Practice Act: ‘An Act in relation to practice and procedure in the courts of this State,’ shows a clear legislative intention to affect only the adjective as distinguished from the substantive law. The material part of section 1 reads: ‘The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited * *. As to all matters not regulated by statute or rule of court, the practice at common law and in equity shall prevail.’ Section 31 provides: ‘Neither the names heretofore used to distinguish the different ordinary actions at law, nor any formal requisites heretofore appertaining to the manner of pleading in such actions respectively, shall hereafter be deemed necessary or appropriate, and there shall be no distinctions respecting the manner of pleading between such actions at law and suits in equity, other than those specified in this Act and the rules adopted pursuant thereto; but this section shall not be deemed to affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity.’ Section 44(1) provides that subject to rules plaintiffs...