Matyskiel v. Bernat, Gen. No. 51345
| Court | United States Appellate Court of Illinois |
| Citation | 85 Ill.App.2d 175,228 N.E.2d 746 |
| Docket Number | Gen. No. 51345 |
| Parties | William MATYSKIEL, Plaintiff-Appellant, v. Joseph J. BERNAT, Defendant-Appellee. |
| Decision Date | 06 July 1967 |
Page 746
v.
Joseph J. BERNAT, Defendant-Appellee.
[85 Ill.App.2d 176]
Page 747
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.
[85 Ill.App.2d 177] 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.
Page 748
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[85 Ill.App.2d 178] 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...
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Daley v. Jack's Tivoli Liquor Lounge, Inc., Gen. No. 52837
...reversed). By far the largest number, however, ascribe as the reason, the avoidance of 'injustice' (e.g., Matyskiel v. Bernat, 85 Ill.App.2d 175, 177--178, 228 N.E.2d 746 (judgment reversed)); or Page 818 the doing of 'substantial justice.' E.g., Zaidenberg v. Occidental Life Ins. Co., 65 I......
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Stephens v. Taylor, 3-01-0577.
...Agnes was not able to raise the issue previously because there had not yet been a final judgment in the case. See Matyskiel v. Bernat, 85 Ill.App.2d 175, 228 N.E.2d 746 (1967) (providing that an order granting a new trial is interlocutory in nature). Accordingly, Agnes is not barred from ra......
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TAD, Inc. v. Siebert, 77-217
...of his prior employer. Absent such circumstances, however, there can be no such prohibition. " (Revcor, Inc., 85 Ill.App.2d at 357, 228 N.E.2d at 746.) Page [20 Ill.Dec. 758] In Beltone Electronics, 44 Ill.App.2d at 117, 194 N.E.2d 21, where the defendant employee's employment contract did ......
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Tamalunis v. City of Georgetown, 4-88-0677
...granting a new trial is interlocutory and the only means to appeal the order is by means of Rule 306. (Matyskiel v. Bernat (1967), 85 Ill.App.2d 175, 179, 228 N.E.2d 746, 749.) The rule also provides that the rulings of the trial court on post-trial motions are before the reviewing court wi......
-
Daley v. Jack's Tivoli Liquor Lounge, Inc., Gen. No. 52837
...reversed). By far the largest number, however, ascribe as the reason, the avoidance of 'injustice' (e.g., Matyskiel v. Bernat, 85 Ill.App.2d 175, 177--178, 228 N.E.2d 746 (judgment reversed)); or Page 818 the doing of 'substantial justice.' E.g., Zaidenberg v. Occidental Life Ins. Co., 65 I......
-
Stephens v. Taylor, 3-01-0577.
...Agnes was not able to raise the issue previously because there had not yet been a final judgment in the case. See Matyskiel v. Bernat, 85 Ill.App.2d 175, 228 N.E.2d 746 (1967) (providing that an order granting a new trial is interlocutory in nature). Accordingly, Agnes is not barred from ra......
-
TAD, Inc. v. Siebert, 77-217
...of his prior employer. Absent such circumstances, however, there can be no such prohibition. " (Revcor, Inc., 85 Ill.App.2d at 357, 228 N.E.2d at 746.) Page [20 Ill.Dec. 758] In Beltone Electronics, 44 Ill.App.2d at 117, 194 N.E.2d 21, where the defendant employee's employment contract did ......
-
Tamalunis v. City of Georgetown, 4-88-0677
...granting a new trial is interlocutory and the only means to appeal the order is by means of Rule 306. (Matyskiel v. Bernat (1967), 85 Ill.App.2d 175, 179, 228 N.E.2d 746, 749.) The rule also provides that the rulings of the trial court on post-trial motions are before the reviewing court wi......