Cowen v. Harding Hotel Co.

• Decision Date: 19 March 1947
• Docket Number: 29811.,Nos. 29810,s. 29810
• Citation: 72 N.E.2d 177,396 Ill. 477
• Parties: COWEN v. HARDING HOTEL CO. et al.
• Court: Illinois Supreme Court

396 Ill. 477

72 N.E.2d 177

COWEN

v.HARDING HOTEL CO. et al.

Nos. 29810, 29811.

Supreme Court of Illinois.

March 19, 1947.

Appeals from First Division, Appellate Court, First District, on Appeals from Circuit Court, Cook County; Charles D. Page, and Harry M. Fisher, Judges.

Action by Rosalie Cowen against the Harding Hotel Company and others for injuries sustained as the result of eating a sandwich which allegedly contained pieces of tin, and which had been purchased at defendants' restaurant. From a judgment of the Appellate Court, 67 N.E.2d 707, 329 Ill.App. 239, reversing and remanding a default judgment for plaintiff against defendant Harding Hotel Management Corporation, plaintiff appeals.

Appeal dismissed.

Barnet Perel, of Chicago (Arthur A. Wolfinsohn and George A. Gordon, both of Chicago, of counsel), for appellant.

Vogel & Bunge, of Chicago (L. H. Vogel, Forrest S. Blunk and Richard H. Merrick,all of Chicago, of counsel), for appellees.

WILSON, Justice.

July 7, 1944, the plaintiff, Rosalie Cowen, brought an action for personal injuries in the circuit court of Cook county against the Harding Hotel Company and the Harding Hotel Management Corporation, alleging that defendants, or either of them, owned and operated a restaurant at 21 South Wabash Avenue, Chicago, where the alleged injuries occurred. At the same time, plaintiff filed a written demand for a jury trial. Each defendant was served with summons by leaving a copy with A. J. Sinkula, an agent of both corporations. The sheriff's return discloses that the hotel company was served on July 7, 1944, and that the management corporation was served on July 6, 1944, one day before this action was commenced. Thereafter, the hotel company answered plaintiff's complaint. On April 4, 1945, an order was entered defaulting the management corporation for failure to file an answer or make appearance. April 6, 1945, plaintiff waived a jury as to the management corporation, evidence was heard, and a judgment for $7,500 was entered in favor of plaintiff and against Harding Hotel Management Corporation.

July 2, 1945, the management corporation filed a motion in the nature of a writ of error coram nobis to set aside the default and for leave to file an answer. The affidavit of A. J. Sinkula in support of the motion alleges that the management corporation is a wholly owned subsidiary of the hotel company and has the same officers, agents, and offices as the parent company; that he forwarded both summonses to an insurance company with which the parent company carried public liability insurance, under the mistaken belief that the insurance covered both the hotel company and the management corporation; that the insurance company acknowledged receipt of the summonses and advised the hotel company it would not be necessary for the latter to take any further action, and that the answer of the hotel company was filed in its behalf by the insurance company but none was filed for the management corporation. The motion was heard and denied on the same day it was filed. On July 5, 1945, the management corporation filed its notice of appeal from the judgment by default entered April 6, 1945, and from the order of July 2, 1945, denying its motion in the nature of a writ of error coram nobis.

Four months later, plaintiff filed her petition in the circuit court to amend the judgment order of April 6, 1945, and the sheriff's return of service of summons on the management corporation to show the true fact that the summons was served July 7, and not on July 6, 1944. The management corporation interposed written objections to the motion. On December 27, 1945, an order was entered allowing the amendments and the motion of the management company to strike plaintiff's petition was denied. Again, the management company prosecuted an appeal to the Appellate Court for the First District. Subsequently, the two appeals were consolidated for hearing. On June 26, 1946, the Appellate Court reversed the judgment of the circuit court and remanded the cause to permit the management company to file its answer so that the case may be tried. We have allowed plaintiff's petitions for leave to appeal.

The merits of the present controversy cannot be touched upon without first disposing of the question of the jurisdiction of this court. Only final judgments of the Appellate Court are reviewable here. (Ill.Rev.Stat.1945, chap. 110, par. 199.) Unless the judgment of that court fully and finally disposes of the rights of the parties to the cause, this court does not have jurisdiction to review it. Kavanaugh v. Washburn, 387 Ill. 204, 56 N.E.2d 420;Smith v. Bunge, 358 Ill. 229, 193 N.E. 122;Dowdall v. Hutchens, 347 Ill. 326, 179 N.E. 858. In the present case, the Appellate Court reversed the judgment of the circuit court and...