Betts v. Ray

Decision Date24 February 1982
Docket NumberNo. 81-19,81-19
Citation104 Ill.App.3d 168,432 N.E.2d 1222,60 Ill.Dec. 323
Parties, 60 Ill.Dec. 323 M. E. BETTS, Plaintiff-Appellee, v. O. W. RAY and Ray Dalton, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Russell H. Classen, Belleville, and Darrell Dunham, Carbondale, for defendants-appellants.

James R. Zimmer, Medlin, Zimmer & Medlin, Carbondale, for plaintiff-appellee.

KARNS, Presiding Justice:

Plaintiff, M. E. Betts, brought an action for declaratory judgment against defendants, Dr. Ray E. Dalton and O. W. Ray in the circuit court of Jackson County. Thereafter, Betts, without notice to Dalton, obtained a preliminary injunction enjoining Dalton from proceeding with a related action against Betts in the circuit court of St. Clair County. After a hearing, the court entered judgment denying Dalton's motion to vacate the preliminary injunction and granted a permanent injunction in favor of Betts. This appeal followed.

On September 26, 1980, Betts filed a complaint for declaratory judgment against Dalton and O. W. Ray in the circuit court of Jackson County seeking a declaration that Betts was the legal owner of a 1974 GM motor home and was entitled to a certificate of title. The complaint stated that in December 1978, Betts went to Ray's used-car lot, located in Belleville, to inquire about the purchase of a motor home. Betts and Ray negotiated for the sale of the 1974 GM motor home and on December 31, 1978, Ray delivered the motor home to Betts at his home located in Jackson County. Betts and Ray signed a bill of sale which recited that the motor home was traded for $3,000 and certain vehicles and equipment for a total purchase price of $27,000. The complaint alleged that Ray represented to Betts that he was the owner of the motor home, but that the certificate of title was located temporarily at a Belleville bank. The bill of sale stated that Ray was to deliver the title to Betts; title was not delivered.

In the complaint, Betts stated on information and belief that Dalton had engaged Ray to sell the motor home at Ray's used-car lot and that Dalton now claimed an interest in the motor home. The complaint stated that prior to purchasing the motor home from Ray, Betts did not have knowledge of Dalton's interest in the motor home.

On October 27, 1980, Dalton filed an answer to the complaint denying Betts' claim of ownership and asserting as an affirmative defense the pendency of a replevin action filed in St. Clair County on September 19, 1979, against Ray and amended to add Betts as a defendant on September 25, 1980. Thereafter, Betts filed an answer denying the allegations raised in Dalton's affirmative defense.

On November 5, 1980, the trial court found Ray in default and entered judgment against him.

On December 3, 1980, without notice to Dalton, Betts filed a motion for a preliminary injunction to prohibit Dalton, his attorney and the Sheriff of Jackson County from taking any further action in and on account of the St. Clair County action for replevin. In the verified motion, Betts stated that at the time of filing the complaint for declaratory judgment in Jackson County, he had no knowledge of the pending St. Clair County action. The motion further stated that Betts was not served with process and did not receive notice of the St. Clair County action. It alleged that on December 1, 1980, a Jackson County deputy sheriff informed Betts that he was looking for the motor home because he had a writ of replevin to serve upon locating the property. The motion stated that the writ of replevin was not served on Betts. The immediate and irreparable injury alleged in the motion to result from the named parties' conduct was the unlawful harassment of Betts and the threatened unlawful seizure of his property. The same day, after an ex parte hearing, the trial court granted the preliminary injunction and set the matter of the permanent injunction for hearing on December 11, 1980.

The brief record of proceedings of the hearing on December 11, 1980, indicates that the parties did not present any evidence. After argument, Dalton filed a motion to vacate the preliminary injunction. That motion was denied and the court granted the permanent injunction in favor of Betts. On January 14, 1981, Dalton filed a notice of appeal. Thereafter, the action for declaratory judgment proceeded and on April 9, 1981, the court entered judgment vesting ownership of the motor home in Betts. (We note that Dalton has appealed to this court from that judgment.) On April 13, 1981, Betts filed in this court a motion to dismiss this appeal as moot which was granted. After rehearing, the appeal was reinstated on June 23, 1981.

On appeal Dalton contends that the trial court was without jurisdiction to enjoin him from proceeding in the pending St. Clair County action which was commenced prior to the Jackson County action and that the instant appeal is not moot because the filing of the notice of appeal on January 14, 1981, divested the trial court of jurisdiction, and, therefore, the judgment entered on April 9, 1981, is null and void. Because we find that the appeal has been rendered moot, it is not necessary to resolve the issues raised by Dalton's initial contention.

At the outset, we note that, contrary to the parties' interpretation of the nature of the order appealed from, the trial court's order granting the permanent injunction was a final judgment and not an interlocutory order. The order was entered after a hearing on the merits of the subject of the injunction and permanently enjoined Dalton from proceeding in the St. Clair County action. (Statistical Tabulating Corporation v. Hauck (1st Dist. 1972), 5 Ill.App.3d 50, 282 N.E.2d 524.) The trial court's order contained an express written finding that there was no just reason for delaying appeal. Although the pleadings presented...

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7 cases
  • Steel City Bank v. Village of Orland Hills
    • United States
    • United States Appellate Court of Illinois
    • 30 Diciembre 1991
    ...orders, the order appealed from must not be in the nature of a permanent injunction. (SeeBetts v. Ray (1982), 104 Ill.App.3d 168, 170, 60 Ill.Dec. 323, 325, 432 N.E.2d 1222, 1224.) If an injunction is permanent in nature, it is a final order appealable only under Rules 301 or 304(a), if tho......
  • O'Brien v. Cacciatore, 1-90-0605
    • United States
    • United States Appellate Court of Illinois
    • 27 Marzo 1992
    ...405 N.E.2d 1316), since any finding made on the issue would have no practical effect on the controversy. (Betts v. Ray (1982), 104 Ill.App.3d 168, 60 Ill.Dec. 323, 432 N.E.2d 1222.) Had plaintiff transferred the property to a third party, this appeal would be moot since the third party woul......
  • Smith v. Goldstick
    • United States
    • United States Appellate Court of Illinois
    • 5 Noviembre 1982
    ...* * * on the issue * * * cannot * * * have any practical legal effect on the controversy * * * " (Betts v. Ray (1982), 104 Ill.App.3d 168, 171, 60 Ill.Dec. 323, 326, 432 N.E.2d 1222, 1225). In the instant case, defendant's request that the orders be vacated would divest intervening plaintif......
  • Village of Hillside v. Illinois Commerce Com'n
    • United States
    • United States Appellate Court of Illinois
    • 10 Diciembre 1982
    ...N.E.2d 1316), since any finding made on the issue can have no practical legal effect on the controversy (Betts v. Ray (1982), 104 Ill.App.3d 168, 60 Ill.Dec. 323, 432 N.E.2d 1222). Thus, in the instant action, the issue is moot only if we cannot order a return to the status quo; i.e., a ret......
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