Kelly v. Winkler

• Decision Date: 08 June 1953
• Docket Number: No. 46011,46011
• Citation: 351 Ill.App. 145,114 N.E.2d 335
• Parties: KELLY v. WINKLER et al.
• Court: United States Appellate Court of Illinois

Page 335

114 N.E.2d 335

351 Ill.App. 145

KELLY v. WINKLER et al.

No. 46011.

Appellate Court of Illinois, First District, First Division.

June 8, 1953.

Samuel Broyde, Chicago, for appellant.

Morton Lewis, Chicago (John H. Roser, Chicago, of counsel), for appellees.

NIEMEYER, Justice.

Plaintiff, whose action in tort has been dismissed twice for want of prosecution, appeals from an order sustaining the motion of defendant Rachel Wallace in the nature of a writ of error coram nobis to vacate a judgment by default entered against her in the sum of $10,000, directing that leave be given the defendant to answer, that the judgment theretofore entered stand as security to abide the outcome of the case and that the case be set on the trial calendar. The order further recites that the motion is sustained on the ground that the defendant was not personally served with notices of motion to reinstate the above cause when the same was twice dismissed for want of prosecution. The order bears the endorsement 'O. K. for plaintiff', by the attorney for the plaintiff in the trial court.

Defendant takes the position that the order having been O.K'd., it was a consent order and plaintiff cannot appeal. This is undoubtedly the law where an order has been entered by consent. On oral argument plaintiff's counsel insisted that he did not intend to waive the right of appeal, and he later brought to our attention the recent opinion in People ex rel. Edelman v. Hunter, 350 Ill.App. 75, 111 N.E.2d 906, in which the court permitted an appeal from orders O. K'd. by the appellant. It appears from that opinion that on oral argument the attorneys agreed that the defendants' motion to strike plaintiff's petition for writ of mandamus had been argued by the respective parties before the trial judge and that after such argument the judge gave his decision denying defendants' motion and ordering them to answer; that the order and final judgment were pursuant to this decision. The attorney for defendants stated that he presented the order and judgment appealed from and O. K'd. them in order to obtain a final order upon which to appeal. The court relies on Nelson v. Nelson, 340 Ill.App. 463, 92 N.E.2d 534, in which one justice dissented.

We cannot concur in these decisions. The law is plain that there can be no appeal from a consent judgment. Paine v. Doughty, 251 Ill. 396, 96 N.E. 212; Galway v. Galway, 231 Ill. 217, 83 N.E. 154. To permit appeals after a final order has been O. K'd. or approved by the party appealing opens the way to imposition on the trial judge and opposing counsel. If as stated in the Edelman case, supra, it was the purpose of the attorney to expedite an appeal, an approval of the order as to form would have...