Elder v. Robins

• Decision Date: 12 October 1972
• Docket Number: No. 71--113,71--113
• Citation: Elder v. Robins, 288 N.E.2d 506, 7 Ill.App.3d 657 (Ill. App. 1972)
• Parties: Doris E. ELDER, Third Party Plaintiff-Appellant, v. Robert P. ROBINS, d/b/a Robbie's Standard Service Station, Third Party Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 506

288 N.E.2d 506

7 Ill.App.3d 657

Doris E. ELDER, Third Party Plaintiff-Appellant, v.Robert P. ROBINS, d/b/a Robbie's Standard Service StationThird Party Defendant-Appellee.

No. 71--113.

Appellate Court of Illinois, Third District.

Oct. 12, 1972.

James B. Lewis, Heyl, Royster, Voelker & Allen, Peoria, for appellant.

R. Michael Henderson, McConnell, Kennedy, McConnell & Morris, Peoria, for appellee.

STOUDER, Presiding Justice.

This is an appeal from an order of the Circuit Court of Peoria County which denied the petition of Doris Elder, Third PartyPlaintiff, to reinstate her cause of action against Robert Robins, d/b/a Robbie's Standard Service Station, Third Party Defendant.

Doris Elder was defendant in the original action.She filed a Third Party action against Howe Motor Sales, Inc., and Robert P. Robins, d/b/a Robbie's Standard Service Station.The third party action against Howe was dismissed 'with prejudice, cause of action satisfied' upon the stipulation of the parties by an order of July 7, 1970.The case subsequently appeared on the calendar call of the Circuit Court of Peoria County.The third party defendant, Robins, moved to dismiss on the basis that the July 7, 1970 order was effective as a satisfaction of Elder's cause of action against Robins.That motion was granted by the order of February 26, 1971.Elder moved for a reconsideration.That motion was denied on March 15, 1971.

Elder did not appeal from the orders of February 26 and March 15, but she moved to expunge the words, 'cause of action satisfied' from the July 7, 1970 order.The motion entitled, 'Motion To Correct Order Or In The Alternative, Petition For Writ Of Error Corum Nobis' was filed on March 25, 1971.That motion was granted in the order of April 23, 1971, which order also reinstated the case.Defendant moved to correct the order of April 23, 1971, by expunging that part of the order indicating cause reinstated because the order did not conform to the motion.Defendant's motion was granted.On May 3, 1971, Elder filed her petition in the nature of a petition under Sec. 72 of the Civil Practice Act(Sec. 72, Chap. 110, Ill.Rev.Stat.1969).The petition sought reinstatement of her cause of action against Robins on two theories.First, that 30 days after July 7, 1970, the court lost jurisdiction of the case and consequently the court's orders of February 26 dismissing the action as to Robins, and March 15, denying reconsideration, were entered at a time when the court had no jurisdiction.The second theory of the petition was that since the court had expunged nunc pro tunc that part of the July 7, 1970 order providing 'cause of action satisfied', this constituted a new factor not previously considered by the court and one inconsistent with the basis of the court's previous order.The court denied the petition to reinstate the case and it is from such order that this appeal follows.

On this appeal third partyplaintiff, Elder, argues the court erred in denying her petition for reinstatement arguing the court had no jurisdiction to dismiss her action against Robins having lost its jurisdiction 30 days after its order of July 7, 1970.Elder also argues that expunging the provision of the July 7, 1970 order was a sufficient basis to warrant granting relief under Sec. 72 of the Civil Practice Act.

It is undisputed that a stipulation had been entered into by and between Elder and the other third party co-defendant, Howe Motor Sales, sometime prior to July 7, 1970.Prior to its execution it contained the phrase, 'with prejudice, cause of action satisfied', although the phrase, 'cause of action satisfied' was deleted prior to execution and prior to presentation to the court.However the order entered July 7, 1970, contained the recitation, the drafter thereof apparently failing to modify the order to conform to the stipulation.The July 7 order and stipulation referred only to the parties Elder and Howe Motor Sales and so far as the records of the court were concerned the third party case was still pending against Robins.

Both parties agree that 'cause of action satisfied' is a complete extinguishment of a plaintiff's cause of action against everyone.However we do not believe that the order of dismissal as to less than all of the third party co-defendants terminated the court's jurisdiction against the third party co-defendant not described in the order.While the finding in the order that the cause of action was settled would have the effect of entitling the other third party co-defendant to dismissal as to him the effect of the finding is not automatic.If the records of the court and the court itself believed that the action had not been dismissed as to Robins we believe that it has ample jurisdiction to dispose of pending cases.

Furthermore we believe petitioner's opposition to the Robins' motion resulting in the dismissal order of February 26, 1971, and her request for reconsideration denied March 15, 1971, without any claim that the court lacked jurisdiction, constituted sufficient participation in the proceedings so that the court reacquired jurisdiction if in effect it had been lost.Stevens v....