Harty v. Kirby

• Decision Date: 14 February 1975
• Docket Number: No. 61140,61140
• Citation: 325 N.E.2d 406,26 Ill.App.3d 688
• Parties: Richard B. HARTY, Plaintiff-Appellee, v. William J. KIRBY, Defendant-Appellant, and Brentwood Nursing and Convalescent Home, Inc., Defendant.
• Court: United States Appellate Court of Illinois

Page 406

325 N.E.2d 406

26 Ill.App.3d 688

Richard B. HARTY, Plaintiff-Appellee, v. William J. KIRBY, Defendant-Appellant, and Brentwood Nursing and Convalescent Home, Inc., Defendant.

No. 61140.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 14, 1975.

Robert D. Bjork, Chicago, for defendant-appellant.

Daniel Andrew Gallagher, Chicago, for plaintiff-appellee.

Richard J. Troy, Chicago, for defendant.

SULLIVAN, Justice:

This cause arose out of a suit for specific performance of an option agreement to purchase 50 shares of stock in Brentwood Nursing and Convalescent Home, Inc. (Brentwood). A suit for an accounting between the same parties was consolidated with this cause. After a trial, the court on June 14, 1974 entered its order finding for plaintiff, Richard B. Harty, and against defendant, William J. Kirby, allowing plaintiff 60 days from the entry of the order to make a proper tender of the sum specified in the contract; whereupon, defendant was to transfer to plaintiff the stock in question. Further, the court found certain sums of money were due and owing between the parties on various accounts, including $22,766.41 due from plaintiff to Brentwood. Finally, the court held:

'That this court hereby retains jurisdiction of the subject matter of this cause and of the parties hereto for the purpose of carrying out this Decree; except for enforcement thereof, this Decree is the final determination of the issues in this consolidated action and there is no just reason for delaying an appeal therefrom.'

No appeal was taken from this order.

Thereafter, defendant failed to accept the tender of payment and to transfer the stock in question. The plaintiff then returned to court and obtained the following order dated August 21, 1974:

'It is hereby ordered that said defendant, WILLIAM J. KIRBY, shall appear in person before this court on September 23, 1974, at 10:30 a.m., and upon being given a cashier's check by said plaintiff, RICHARD B. HARTY, for $17,181.83 the said defendant, WILLIAM J. KIRBY, shall deliver at once to the said RICHARD B. HARTY a certificate in proper form for fifty (50) shares of the said nursing home stock purchased by the said defendant WILLIAM J. KIRBY from THOMAS DOYLE.'

On September 19, 1974, defendant filed his Notice of Appeal, in which he asks that the order of August 21, 1974 be vacated and that this court enter an order dismissing the petition of plaintiff, because plaintiff failed to pay or tender to Brentwood the sum of $22,766.41 found due under the decree entered June 14, 1974. Plaintiff moved to dismiss the appeal as not being timely filed.

It is axiomatic that a judgment, order or decree from which an appeal could have been taken may not be reviewed on appeal from a subsequent order entered in the cause. As stated in 2 I.L.P., Appeal and Error, Sec. 654:

'A judgment, decree, or order from which an appeal could have been taken cannot be reviewed or considered on an appeal from a subsequent judgment, order, or decree where the right to appeal from the former judgment or order has been lost. Thus a final order or judgment will not be considered on appeal from an order merely incidental to carrying out the final order or judgment.' (Footnotes omitted.)

That the order of June 14, 1974 was a 'final' order is clear from the statement to that effect in the decree. In support of the propriety of that finding, we note that Deckard v. Joiner, 44 Ill.2d 412, 255 N.E.2d 900, cert. denied, 400 U.S. 941, 91 S.Ct. 232, 27 L.Ed.2d 244,...