Matyskiel v. Bernat

• Decision Date: 06 July 1967
• Docket Number: Gen. No. 51345
• Citation: 85 Ill.App.2d 175,228 N.E.2d 746
• Parties: William MATYSKIEL, Plaintiff-Appellant, v. Joseph J. BERNAT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 746

228 N.E.2d 746

85 Ill.App.2d 175

William MATYSKIEL, Plaintiff-Appellant, v. Joseph J. BERNAT, Defendant-Appellee.

Gen. No. 51345.

Appellate Court of Illinois, First District, Third Division.

July 6, 1967.

Davis, Dietch & Ryan, Arthur F. Cichorski, Chicago, for appellant.

No appearance for appellee.

DEMPSEY, Justice.

Automobiles owned by William Matyskiel and Joseph Bernat collided in June of 1965 and Matyskiel sued for damages to his car. After a nonjury trial, the court found Bernat at fault, assessed Matyskiel's damages at $175.00 and entered judgment for that sum.

Bernat, through new counsel, filed a motion to vacate the judgment. The motion alleged that: Matyskiel was uninsured at the time of the accident; Bernat notified his insurance company that he had a claim against Matyskiel which would be presented under the uninsured motorists coverage of his policy; thereafter he was served with process notifying him that Matyskiel had filed a property damage suit; he forwarded the summons to his insurance company; notwithstanding his own claim, the company furnished the attorneys who defended him in Matyskiel's suit; the company's and the attorneys' interests were adverse to him; they could not adequately and fairly represent him but they proceeded to trial despite their conflict of interest. The motion further alleged that because of Matyskiel's judgment the defense of estoppel would be raised to any subsequent suit or arbitration proceeding commenced by Bernat under the uninsured motorists provision of his policy. The trial court granted the motion.

Matyskiel regarded the trial court's order as one granting Bernat a new trial and he petitioned this court for leave to appeal. No brief, objection or counter-motion was filed in opposition to the petition and it was allowed. Matyskiel filed an additional brief in support of his petition and requested oral argument. An appearance was filed by Bernat's attorneys but no brief was presented in his behalf. Despite this deficiency an attorney appeared at the argument and, in response to our inquiry, stated that no brief had been filed because of the small amount involved and because the defendant relied upon a memorandum of law which was in the record and which had been submitted to the trial court.

The memorandum referred to did not, in any respect, meet the issues or answer the arguments made in the appellant's petition and brief. Since the appellee did not file a brief in this court we would be justified, without further consideration of the merits of the case, in reversing the order of the trial court (541 Briar Place Corporation v. Harmann, 46 Ill.App.2d 1, 196 N.E.2d 498 (1964)). Appellate Court Rule 5(2)(k) (Supreme Court Rule 39(1) (1965), Ill.Rev.Stat.1965, c. 110, § 101.39(1), provides:

'Each party to a cause in this court shall file a printed brief * * *.

'Appellant's Brief shall contain the following divisions * * * Points and Authorities * * *.

'II. The Points and Authorities shall consist of the propositions relied upon in support of the appeal with citation of authorities.

'IV. The Argument shall be limited to the points made and cases cited in the Points and Authorities * * *.

'No alleged error or point not contained in the brief shall be raised afterwards, either by reply brief or in oral or printed argument * * *.

'Appellee's Brief shall conform to the same rules as those governing appellant's brief * * *. The Points and Authorities shall consist of the propositions relied upon to sustain the judgment, decree or order appealed from, with supporting authorities * * *.'

Although an appellee has not complied with Rule 5(2)(k) we may, if we believe it advisable, examine the record to ascertain if an injustice would be done the appellee if the trial court's order, decree or judgment were to be reversed. Werbeck v. Werbeck, 70 Ill.App.2d 279, 217 N.E.2d 502 (1966). In view of the averments made in the defendant's motion we have done that in this case.

The motion was filed within thirty days of the judgment and prayed that the judgment be vacated and the case set for trial. Although the motion did not state the statute under which it was brought, the memorandum presented in support of the motion said it was '* * * filed within Thirty (30) days of the entry of the aforementioned judgment, as provided for in Section 72 of the Civil Practice Act.' This was obviously wrong. The motion could not lie under section 72; this section provides for relief from final orders, judgments and decrees, after thirty days from entry thereof. The motion could have been made under section 68.3 of the Civil Practice Act:

'In chancery cases and in cases at law tried without a jury, any party may, within 30 days after the entry of the decree or judgment, file a motion for rehearing, or a retrial, or modification of the decree or judgment or to vacate the decree or judgment or for other relief.' Ill.Rev.Stat., 1965, ch. 110, sec. 68.3(1).

The court's order did not state the authority under which the motion was allowed; it merely granted the motion and ordered a new trial. Under the circumstances, it was not unreasonable for the plaintiff to interpret this as an order granting a new trial. The defendant apparently accepted this interpretation. As we have mentioned, he did not object to the petition for leave to appeal and did not move to dismiss the appeal after the petition was allowed.

An order vacating a judgment is interlocutory and is not appealable. Dross v. Farrell-Birmingham Co., Inc., 51 Ill.App.2d 192, 200 N.E.2d 912 (1964). An order granting a new trial, while interlocutory, may be appealed if permission is obtained from the reviewing court. Supreme Court Rule 30 (1965); Rule 306 (1967); Rodriguez v. Chicago Transit Authority, 58 Ill.App.2d 150, 206 N.E.2d 828 (1965). We adhere to our decision; we retain the appeal as one from an order granting a retrial.

This case must be distinguished from Natale v. Enterprise Publishing Co., Ill.App., 227 N.E.2d 84 (filed by this court April 6, 1967). In Natale a...