Gibbons v. Cannaven

• Decision Date: 16 May 1946
• Docket Number: No. 28987.,28987.
• Parties: GIBBONS v. CANNAVEN.
• Court: Illinois Supreme Court

393 Ill. 376

66 N.E.2d 370

GIBBONS

v.CANNAVEN.

No. 28987.

Supreme Court of Illinois.

March 20, 1946.

Rehearing Denied May 16, 1946.

Appeal from Third Division of Appellate Court for First District; on Appeal from Circuit Court, Cook County; Michael Feinberg, Judge.

Action by Mary Gibbons against Jack Cannaven, tavern keeper, under the Dram Shop Act to recover for injuries sustained when plaintiff was assaulted by a person to whom defendant had sold intoxicating liquor. Judgment for plaintiff and Hugo E. Brandt and others, owners of the property in which defendant operated the tavern, appeal. From a judgment of the appellate court, 325 Ill.App. 337, 60 N.E.2d 254, dismissing the appeal, Hugo E. Brandt and others appeal on leave granted by Supreme Court.

Affirmed.Lord, Bissell & Kadyk and Martin, Ullmann & Brown, all of Chicago (L. Duncan Lloyd, Bruce E. Brown, and Russell Greenacre, all of Chicago, of counsel), for appellants.

John H. Gately, of Chicago, for appellee.

SMITH, Justice.

This appeal brings up for review a judgment of the Appellate Court for the First District. It involves a construction of sections 14 and 15 of the Liquor Control Act, passed by the General Assembly and approved on January 31, 1934. Ill.Rev.Stat.1945, chap. 43, pars. 135 and 136.

On May 7, 1941, Mary Gibbons brought the suit against Jack Cannaven alone, as defendant, in the circuit court of Cook county. The suit was based upon the charges in the complaint that Cannaven, on August 10, 1940, was operating a tavern, or night club, in the city of Chicago that on that date he sold intoxicating liquor to a person named in the complaint; that such person became intoxicated as the result of drinking the liquor so sold to him and, because of such intoxication, assaulted the plaintiff, inflicting upon her serious and permanent injuries. A trial was had before a jury resulting in a verdict in favor of plaintiff and against Cannaven, the tavern keeper. On December 1, 1942, a judgment was entered on the verdict of the jury against the defendant for the amount of damages fixed by the jury. No appeal was taken by Cannaven from that judgment.

Thereafter a suit was brought by the plaintiff against appellants here, who were the owners of the building in which the tavern was conducted, to subject the property to the payment of the judgment, under section 15 of the Liquor Control Act. Appellants being nonresidents, the cause was removed to the District Court of the United States for the Northern District of Illinois, where it is still pending. Appellants were not parties to the suit brought against Cannaven, in which the judgment here involved was entered.

On November 30, 1943, and within one year from the date the judgment was entered against Cannaven, appellants filed in the Appellate Court for the First District a petition for leave to appeal from the judgment, under paragraph (1) of section 76 of the Civil Practice Act. (Ill.Rev.Stat.1945, chap. 110, par. 200.) It was alleged in the petition that while appellants were not parties to the suit in which the appeal was sought, they were ‘parties injured by the judgment of the Circuit Court in the above cause and that they will be benefited by reversal thereof.’ The petition was supported by the affidavit of their counsel. In this affidavit filed with the petition for leave to appeal, the facts concerning their interest in the judgment were set out more in detail. It also set up the facts relied upon as excusing them from perfecting an appeal within ninety days after the entry of the judgment.

The Appellate Court, on January 14, 1944, entered an order granting appellants leave to appeal from the Cannaven judgment, in accordance with their petition. Pursuant to this order the notice of appeal was duly filed in the trial court and the appeal was perfected in due course.

Thereafter, appellee, Mary Gibbons, filed in the Appellate Court a motion to dismiss the appeal on the ground that appellants were not interested in the judgment or injured thereby, and had no appealable interest therein. This motion was taken with the case. The cause was submitted on briefs and arguments and on the motion to dismiss. On March 5, 1945, the Appellate Court filed an opinion on which it found that appellants had no appealable interest in the judgment sought to be reversed. The motion to dismiss the appeal was sustained. Judgment was entered according to the findings and the appeal was dismissed. Gibbons v. Cannaven, 325 Ill.App. 337, 60 N.E.2d 254. The case is here on appeal from that judgment, on leave granted by this court.

The decisive questions are whether appellants are interested in the judgment entered against Cannaven and have such an appealable interest therein as entitled them to maintain the appeal to the Appellate Court, and whether the Appellate Court erred in dismissing the appeal for lack of such interest. There is no contention that the judgment against Cannaven was procured by fraud.

It would serve no useful purpose to discuss the many cases cited by appellants as to the appealable interest of persons who are not parties to the record. The rule is well settled and clearly defined. Section 81 of the Civil Practice Act (Ill.Rev.Stat.1945, chap. 110, par. 205) provides that ‘The right heretofore possessed by any person not a party to the record to review a judgment or decree by writ of error shall be preserved by notice of appeal.’ Prior to the enactment of the Civil Practice Act, a person not a party to the suit had no right to appeal. People ex rel. Yohnka v. Kennedy, 367 Ill. 236, 10 N.E.2d 806;People ex rel. Galloway v. Franklin County Building Ass'n, 329 Ill. 582, 161 N.E. 56. Under the practice prevailing prior to the adoption of that act, in order to entitle a person to have a judgment to which he was not a party reviewed on writ of error, it was incumbent upon him to show an interest in the judgment or decree sought to be reviewed, or that he would be benefited by its reversal or was competent to release errors. Almon v. American Car Loading Corp., 380 Ill. 524, 44 N.E.2d 592. In People ex rel. County of Peoria v. Estate of Harrigan, 294 Ill. 171, 128 N.E. 334, it was said that in order to entitle a person to prosecute a writ of error to review a judgment to which he was not a party, the interest of such party must appear in the record, or if it does not so appear, then it must be alleged in the assignment of errors. His interes must be such as to show that he takes or loses something directly by the judgment or decree which he challenges. Leland v. Leland, 319 Ill. 426, 150 N.E. 270;White Brass Castings Co. v. Union Metal Mfg. Co., 232 Ill. 165, 83 N.E. 540,122 Am.St.Rep. 63. The general rule was that before a person who was not a party to the record was entitled to maintain a writ of error, he must show a direct interest in the subject matter of the litigation, which interest was prejudiced or aggrieved by the judgment sought to be reviewed. American Surety Co. v. Jones, 384 Ill. 222, 51 N.E.2d 122;People ex rel. Altorfer v. City of Peoria, 378 Ill. 572, 39 N.E.2d 42;Hotchkiss v. City of Calumet City, 377 Ill. 615, 37 N.E.2d 332.

Under said section 81 of the Civil Practice Act, any person who is not a party to the record has the right to have a judgment in which he is interested, which interest is prejudiced by the judgment, reviewed by appeal in all cases where he had the right of review by writ of error prior to the adoption of the Civil Practice Act. In such cases, where he formerly had the right of review by writ of error, he now has the right to prosecute an appeal under said section.

The question here is whether appellants, not being parties to the judgment against Cannaven, have such an interest therein, and whether their rights are so prejudiced by that judgment as to authorize them to maintain the appeal to the Appellate Court. The effect of the Cannaven judgment on the rights of appellants is determinative of the question whether they had an appealable interest in that judgment.

As already observed, in order to entitle them to maintain the appeal, it must appear that they have a direct interest in the subject matter of the litigation which is prejudiced by the judgment sought to be reviewed. American Surety Co. v. Jones, 384 Ill. 222, 51 N.E.2d 122. It must be an interest attached to the judgment that was entered on the merits of the controversy. Almon v. American Car Loading Corp., 380 Ill. 524, 44 N.E.2d 592. It is essential that it appear, either from the record or the assignment of errors, that they were injured by the judgment, or will be directly benefited by its reversal, or that they are competent to release errors. Lenhart v. Miller, 375 Ill. 346, 31 N.E.2d 781;People ex rel. Yohnka v. Kennedy, 367 Ill. 236, 10 N.E.2d 806;People ex rel. Pollastrini v. Whealan, 353 Ill. 500, 187 N.E. 491.

It will be observed that section 14 of the Liquor Control Act first gives a right of action to any person injured in consequence of the sale of intoxicating liquor against the person or persons selling or giving liquor to another which, in whole or in part, caused the intoxication resulting in the damages complained of. It then provides that, ‘any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages.’ Section 15 provides, ‘and in case any person shall rent or lease to another any building or premises to be used or occupied, in whole or in part, for the sale of alcoholic liquors, or shall knowingly permit the same to be used or...