Davis v. Childers

• Court: Illinois Supreme Court
• Writing for the Court: SCHAEFER; UNDERWOOD
• Citation: Davis v. Childers, 211 N.E.2d 364, 33 Ill.2d 297 (Ill. 1965)
• Decision Date: 28 September 1965
• Docket Number: No. 39164,39164
• Parties: Richard H. DAVIS, Appellee, v. Earl D. CHILDERS et al., Appellants.

Page 364

211 N.E.2d 364

33 Ill.2d 297

Richard H. DAVIS, Appellee, v. Earl D. CHILDERS et al., Appellants.

No. 39164.

Supreme Court of Illinois.

Sept. 28, 1965.

Rehearing Denied Nov. 18, 1965.

Livingston, Barger, Brandt, Slater & Schroeder, Bloomington (Ralph Schroeder, Bloomington, of counsel), for appellants.

Deneen, Sullivan & Deneen, and Costigan & Wollrab, Bloomington, for appellee.

SCHAEFER, Justice.

This case presents a procedural problem calling for a construction of section 50(2) of the Civil Practice Act. Ill.Rev.Stat.1963, chap. 110, par. 50(2).

The plaintiff, Richard H. Davis, brought this action to recover damages for personal injuries suffered when the rear of his car was struck by another vehicle. This vehicle was owned by the defendants, Earl D. Childers and Hugh Feeney, who are partners, and was being driven by Childers on partnership business. The jury returned a verdict for the defendants. Upon the plaintiff's post-trial motion the trial judge ruled that as a matter of law the plaintiff was entitled to a judgment notwithstanding the verdict of the jury on the issue of liability, and that the cause should be resubmitted to a jury on the issue of damages. He also found that there was 'no just reason for delaying appeal until all the claims, rights or liabilities of the parties are decided.'

The defendants appealed to the appellate court and that court allowed the plaintiff's motion to dismiss the appeal for want of a final and appealable judgment. We granted leave to appeal.

The defendants contend that the finding of the trial court made its order appealable insofar as it entered judgment notwithstanding the verdict upon the issue of liability, and that the appellate court erred in dismissing the appeal. We consider only this contention.

Section 50(2) provides: '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.' Ill.Rev.Stat.1963, chap. 110, par. 50(2).

In our opinion the appellate court properly dismissed the appeal. The plain language of the statute limits its application to those actions which involve 'multiple parties or multiple claims for relief.' While there are two defendants in this case, neither the existence of the partnership nor the fact that the defendants' vehicle was being driven on partnership business was disputed, and the plaintiff does not contend that multiple parties are involved within the meaning of the statute. So far as appealability is concerned, the case therefore stands as an ordinary claim for damages for personal injuries, brought by a single plaintiff against a single defendant. Such a case does not constitute an action involving multiple claims. No more than a single claim is involved, and the statute does not authorize a piecemeal appeal in such a case.

The defendants' argument to the contrary rests upon the fact that in its explanatory comments the committee which drafted the provision used the phrase 'fewer than all the matters involved' as a shorthand substitute for the statutory phrase, 'fewer than all the claims or the rights and liabilities of fewer than all the parties.' The committee also enumerated as one of the advantages of the section 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.' (Smith-Hurd Ill.Ann.Stat., chap. 110, par. 50, Joint Committee Comments.) The opinion of this court in Ariola v. Nigro, 13 Ill.2d 200, 203, 148 N.E.2d 787, repeated these comments of the committee. Because...