Grubb v. Milan

• Decision Date: 19 April 1911
• Citation: 249 Ill. 456,94 N.E. 927
• Parties: GRUBB v. MILAN.
• Court: Illinois Supreme Court

249 Ill. 456

94 N.E. 927

GRUBB

v.MILAN.

Supreme Court of Illinois.

April 19, 1911.

Certiorari to Appellate Court, First District, on Appeal from Municipal Court of Chicago; Henry C. Beitler, Judge.

Action by Thomas E. Grubb against William H. Milan. From a judgment of the Appellate Court affirming a judgment of the Municipal Court for plaintiff, defendant brings certiorari. Reversed and remanded.Edmund W. Burke and C. Stuart Beattie, for plaintiff in error.

William A. Doyle, for defendant in error.

CARTWRIGHT, J.

In November, 1907, Thomas E. Grubb, the defendant in error, exchanged an apartment building in Chicago, subject to an incumbrance of $40,000. with William H. Milan, plaintiff in error, for the fixtures, property, and good will connected with a restaurant in said city and $2,000 in cash. Milan remained in charge of the restaurant for Grubb eight days after the exchange, and Grubb then took charge. Soon afterward Grubb commenced a suit in assumpsit in the municipal court of Chicago against Milan and filed a declaration consisting of one count, alleging the agreement for the exchange and that Milan agreed to convey $5,000 worth of stock, wares, merchandise, produce, groceries, and eatables located in the basement and kitchen of the restaurant, to transfer the property free from incumbrance, and to procure an assignment of the lease, and that the lessor would acknowledge Grubb as tenant. It averred that the plaintiff performed the contract on his part, but that the defendant failed in this: That he did not transfer $5,000 worth of stock, merchandise, eatables, produce, and other property; that the property was incumbered, and the defendant did not make a transfer of the lease by which the lessor acknowledged plaintiff as tenant. To this declaration a plea of nonassumpsit was filed. What was called an amended declaration was afterward filed, setting forth the agreement for the exchange, and alleging that the defendant represented and warranted his property to be worth $30,000 and the business worth $40,000 per year; that there were stored in the basement of the premises stock and supplies worth $5,000 which he would deliver to the plaintiff; and that there were no outstanding debts or obligations. It was averred that the representations were false and fraudulent and induced the plaintiff to transfer his property; that he was prevented from investigating the value of the business and the amount of stock on hand by the representations and warranties of the defendant; that the premises and business were not worth $30,000; that the business did not pay $40,000 per year; that the stock and goods in the basement were not worth $5,000; that the business was not unincumbered, but defendant had given out meal tickets to the extent of $3,000; and that the lease was not of great value and no transfer was assented to by the owner of the building. An order was afterward made that the original declaration stand as an original count, and the declaration was treated as containing two counts. There was no plea to this second count; but, although issue was not taken on it, the case came to trial before the court and a jury.

The plaintiff introduced a large amount of testimony and among other witnesses examined the defendant. After the defendant had been asked whether he did not transfer the property received from Grubb to his wife soon after the exchange, and had been compelled to answer that he signed some papers and took them to the recorder's office, he was asked by plaintiff's attorney to produce the papers and whether he could produce them within an hour or so. He answered that he could not, as he did not know where they were. Plaintiff's attorney then asked him to produce them, and the defendant was told by the court to step aside and left the courtroom to find the papers called for. The plaintiff called other witnesses, who were examined, and then demanded the papers. The fact that the defendant had gone after the papers was explained, and his attorney said that he wanted to put him on the stand when he returned, and the plaintiff thereupon rested his case. The court required the defendant's attorney to proceed, and after offering a lease of the restaurant premises, with an assignment of the same, the case was argued by counsel. As the argument was finished, the defendant entered the courtroom and had been gone at that time an hour and a half. His attorney offered him as a witness, and the court sustained an objection. There was a verdict for the plaintiff for $7,600, and the defendant's attorney entered a motion for a new trial. On June 15, 1908, the plaintiff appeared by his attorney, no one appearing for the defendant, and the court overruled the motion and entered judgment on the verdict. Fifteen days afterward, on June 30, 1908, the parties being present in court, the defendant moved the court to vacate the judgment, and this motion was entered and continued by the court from time to time until October[249 Ill. 460]8, 1908, when it was overruled and defendant excepted. The defendant then asked leave to except to overruling the motion for a new trial and to the entry of judgment, which had been done in the absence of his attorney. The court allowed the exception and fixed 60 days from that time for a bill of exceptions. The bill of exceptions was settled and signed within the time allowed, and the case was taken to the Appellate Court for the First District. On February 16, 1909, the defendant in error moved the Appellate Court to strike out of the record the bill of exceptions, which motion was denied. On October 20, 1910, the court, having taken the case under advisement for a decision on the errors assigned, struck from the record that part of the bill of exceptions containing the proceedings at the trial, held that there were no errors well assigned on the common-law record or the proceedings had subsequent to the judgment, and affirmed the judgment. We granted a petition for a writ of certiorari, and the record has been brought to this court.

[1] If a judgment is rendered at a term of court and a motion is made during the term to vacate the judgment, the court will retain jurisdiction of the cause and have full power to act upon and decide the motion at a subsequent term. Hibbard v. Mueller, 86 Ill. 256;Donaldson v. Copeland, 201 Ill. 540, 66 N. E. 844;People v. Springer, 106 Ill. 542. Such a motion pending and undetermined at the end of a term is continued to the next term by force of the statute, and the legal effect is to stay a final judgment until the overruling of the motion. People v. Gary, 105 Ill. 264;Village of Hinsdale v. Shannon, 182 Ill. 312, 55 N. E. 327.

[2] When a motion to vacate a judgment and for a new trial is finally overruled, the judgment becomes final, and a bill of exceptions can then be tendered to be signed by the judge. Hearson v. Graudine, 87 Ill. 115. The municipal court of Chicago has no stated terms, but a period of 30 days is substituted by section 21 of the act creating the court, which provides: ‘Every judgment, order or decree of said court final in its nature shall be subject to be vacated, set aside or modified in the same manner and to the same extent as a judgment, order or decree of a circuit court during the term at which the same was rendered in such circuit court, provided a motion to vacate, set aside or modify the same be entered in said municipal court within thirty days after the entry of such judgment, order or decree.’ Hurd's Rev. St. 1909, c. 37, § 284. The municipal court has the same power over its judgments for a period of 30 days as circuit courts have during the term at which the judgment is entered, and parties have the same rights. We considered the effect of a motion to set aside a judgment and for a new trial in that court in the case of Hosking v. Southern Pacific Co., 243 Ill. 320, 90 N. E. 669, and held that a judgment of that court does not become final until such a motion is disposed of.

[3][4] It is urged, however, that the rule is not applicable to this case because the motion was to vacate the judgment without asking for a new trial. It would be an indefensible and absurd proposition to say that a judgment is final where there is a motion to vacate it and not final where the motion is to vacate the judgment and for a new trial, but the motion was, in effect, for a new trial and was so treated. Vacating the judgment without a new trial would have done no good, and no reason was offered for setting aside the judgment except to obtain another trial. The motion was supported by an affidavit showing the efforts made by the defendant to find the papers which the plaintiff's attorney had demanded of him, and alleging facts which would constitute a good defense to the...