Ariola v. Nigro

Decision Date20 March 1958
Docket NumberNo. 34597,34597
Citation13 Ill.2d 200,148 N.E.2d 787
PartiesSaverio ARIOLA et al., Appellants, v. Daniel M. NIGRO et al., Appellees.
CourtIllinois Supreme Court

Hoffman & Davis, Chicago (Maurice L. Davis, Robert A. Sprecher and Frank A. Karaba, Chicago, of counsel), for appellants.

Brown, Dashow & Langeluttig, Chicago, and Guerine & Guerine, Melrose Park (Albert Langeluttig and Jack Joseph, Chicago, of counsel), for appellees.

BRISTOW, Justice.

The parties to this appeal, who are adjoining land owners, were adversaries in a complaint and counterclaim filed in the circuit court of Cook County, each praying for injunctive relief and the recovery of damages from the other. After extensive proceedings the chancellor entered a decree making the following adjudications: (1) That the foundations, but not the walls, of the parties' respective buildings mutually encroach upon the land of the other, and that such encroachments are unworthy of remedy; (2) that plaintiffs enjoyed an easement along the west wall of their building, said easement projecting six inches over defendants' premises, for the maintenance of a gutter and downspouts; (3) that although defendants had wrongfully and permanently deprived plaintiffs of the benefits of their easement, plaintiffs were not entitled to equitable relief because they had been guilty of laches in asserting their right; (4) that plaintiffs were entitled to, and limited to, damages for the deprivation of their easement rights in an amount to be measured by the cost of furnishing a roof drainage system for plaintiffs' building 'equivalent in all respects to, and as fully effective as, the roof drainage system enjoyed by plaintiffs immediately before the destruction thereof by the defendants.' Following such findings, the decree re-referred the cause to the master for the purpose of ascertaining such damages, (with directions to report the same to the court together with the master's 'conclusions of law and of fact, and recommendations,') reserved the question of costs pending the further report of the master, found that no other relief should be allowed, and dismissed both the plaintiffs' complaint and the defendants' counterclaim for want of equity. Plaintiffs have appealed from such decree contending they are entitled to relief by way of a mandatory injunction; defendants have cross-appealed reasserting their claims to both injunctive relief and the recovery of damages.

In a supplemental brief, requested when the cause was argued orally, defendants now concede the decree does not possess the requisites to make it final and appealable and suggest alternately that the appeal must be dismissed, by virtue of newly enacted section 50(2) of the Civil Practice Act (Ill.Rev.Stat.1957, chap. 110, par. 50(2),) because there has been no finding by the trial court that there is no just reason for delaying appeal until all the claims, rights or liabilities of the parties are decided. Plaintiffs, however, persist in their contention that the decree is final and appealable and argue that section 50(2) is inapplicable because multiple claims are not involved in this proceeding.

The practice of piecemeal appeals in cases of multiple claims or multiple parties, as well as the uncertainties attending a precise definition of a final order in all cases, led to the enactment of section 50(2) of the Civil Practice Act with effect from January 1, 1956. Its provisions, which are patterned after Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., are as follows: '(2) If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties.' As pointed out by the advisory committee whose labors and recommendations preceded the enactment of the legislature, the theory of the provision is that judgments determining fewer than all the matters involved in an action shall not be appealable unless the trial court makes an express finding that there is no just reason for delaying appeal. Its advantages, according to the committee, are, first, that it avoids unnecessary appeals yet permits an appeal to be taken before final disposition of the case where the court considers an immediate appeal to be appropriate; and second, it enables litigants to determine with certainty, and thus avoid the consequences of failing to appeal, when a judgment adjudicating fewer than all the matters involved is appealable. See Smith-Hurd Anno.Stat., chap. 110, sec. 50(2), Joint Committee Comments; Dickinson v. Petroleum Conversion Corp., 388 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299. The right to appeal is not negated, but whether an appeal from a piecemeal order must await final disposition is left to the trial court's discretion. Cf. Winsor v. Daumit, 7 Cir., 179 F.2d 475, 478.

The Federal rule as amended on December 27, 1946, effective March 19, 1948, provides as follows: 'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.' In its most recent pronouncements, found in Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297, and Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311, the United States Supreme Court has made it clear that the Federal rule does not apply to a single-claim action nor to a multiple-claims action in which all of the claims have been decided, and have stated that the rule is expressly limited to multiple-claims actions in which one or more but less than all of the multiple claims have been finally decided and found otherwise to be ready for appeal. Unquestionably it was the intention that section 50(2) should be similarly limited and we hold that it is. Controversy arises, however, as to the meaning to be given to the phrase 'multiple claims.' Based upon decisions construing the Federal counterpart, as well as an apparent interchange of the terms 'claim' and 'cause of action' appearing in section 33 of the Civil Practice Act (Ill.Rev.Stat.1957, chap. 110, par. 33) plaintiffs insist that the word 'claim,' as it appears in section 50(2), is to be equated with 'a cause of action.' Accordingly, since Rule 10 of this court permits both legal and equitable relief to be sought in one cause of action, (See: Ill.Rev.Stat.1957, chap. 110, par. 101.10,) they reason that only a single 'claim' is involved in their complaint, thus precluding the application of section 50(2) and relieving them of the obligation of securing an express finding that there is no just reason for delaying the appeal. Defendants, for their part, maintain that such a restricted meaning of the word 'claim' was not intended, and represent the true intention of the committee as being to equate 'claims' with the 'rights and liabilities' to which the section refers.

An all-inclusive test for determining when multiplicity of claims exists has not been reached. Thus, under the Federal decision at least, there has arisen a situation which has caused one writer to predict that 'appellate review of whether an order below disposed of a 'claim' within the meaning of 54(b) may easily lead to as much uncertainty and confusion as does the...

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