Holcomb v. Flavin

• Citation: 185 N.E.2d 716,37 Ill.App.2d 359
• Decision Date: 11 October 1962
• Docket Number: Gen. No. 62-0-9
• Parties: Jack C. HOLCOMB, Plaintiff-Appellee, v. Mrs. James T. FLAVIN (Virginia Flavin) and Pulitzer Publishing Company, a Corporation, Defendants and Third-Party Plaintiffs-Appellants. Olga FRANK, Defendant-Appellee, v. Wilbur BARNARD, Jr., Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 716

185 N.E.2d 716

37 Ill.App.2d 359

Jack C. HOLCOMB, Plaintiff-Appellee, v. Mrs. James T. FLAVIN (Virginia Flavin) and Pulitzer

Publishing Company, a Corporation, Defendants and

Third-Party Plaintiffs-Appellants.

Olga FRANK, Defendant-Appellee, v. Wilbur BARNARD, Jr., Third-Party Defendant-Appellee.

Gen. No. 62-0-9.

Appellate Court of Illinois, Fourth District.

Oct. 11, 1962.

Burroughs, Simpson & Burroughs, Gordon Burroughs, Edwardsville, Emerson Baetz, Alton, for third-party plaintiffs-appellants.

Johnson & Ducey, Cornelius T. Ducey, Belleville, for defendants-appellees.

CULBERTSON, Justice.

The present action originated as an action for damages for personal injuries sustained in an automobile collision by Jack C. Holcomb, as plaintiff, as against Olga Frank and Mrs. James T. Flavin, and Pulitzer Publishing Company, a Missouri Corporation, as defendants, asserting that they or two of them were employers of Wilbur Barnard, Jr., who was the driver of the vehicle involved in the collision. While Barnard was named he was not sued as a defendant. Defendants Flavin and the Pulitzer Company appeared and sought leave to bring Barnard in as a third party defendant pursuant to the terms of the Illinois Statutes (1961 Illinois Revised Statutes, Chapter 110, Section 25). Such leave was first granted and the said defendants filed their respective third party complaints and caused summons to be issued. After Barnard appeared he moved to dismiss the third party complaints and plaintiff joined him in a similar motion. The Court heard the motions and allowed them, dismissing the third party complaints. The order of dismissal was entered November 14, 1960. On December 5, 1960, the third party complainants filed a motion to reconsider and vacate the Court's ruling. The Court, on January 18, 1962, denied such motion and again reaffirmed the order entered on November 14, 1960. On March 13, 1962, within a period of sixty days after disposition of the motion to vacate and reconsider, notice of appeal was filed.

The pleadings in the cause raise the issues for determination in that the third party complaints specifically assert that if Barnard was the agent of the complainants they would be entitled to recover over as against Barnard. On appeal in this Court the appellants assert that the dismissal of the third party complaints must be reversed because the appellants had an absolute right, not subject to discretion on part of the lower Court, to file and prosecute their claim or cause of action against Barnard to recover any damages which might be awarded against them under the doctrine of respondeat superior for his negligent acts, and that this right was clearly enforcible under the third party procedure authorized by the statutory provisions referred to in this State. Appellee asserts that the appeal was not timely and should have been taken from the order of November 14, 1960.

In connection with the contention as to the failure to file notice of appeal within sixty days after the November 14 order, a motion to rehear or reconsider, or vacate, in a non-jury case formerly did not suspend the running of appeal time (Atlas Finishing Co. v. Anderson, 336 Ill.App. 167, 83 N.E.2d 177). The provisions of Chapter 110, Section 68.3, 1961 Illinois Revised Statutes, providing 'a motion filed in apt time stays execution, and the time for appeal from the decree or judgment does not begin to run until the court rules upon the motion,' now...