Peach v. Peach

• Decision Date: 06 July 1966
• Docket Number: Gen. No. 65--112
• Citation: 73 Ill.App.2d 72,218 N.E.2d 504
• Parties: Eva PEACH, Conservator of Leo Peach, Incompetent, Appellant, v. Lester PEACH, Gonigam-Bass-Hill, Inc., a corporation, and Internation Harvester Company, a corporation, Appellees.
• Court: United States Appellate Court of Illinois

Page 504

218 N.E.2d 504

73 Ill.App.2d 72

Eva PEACH, Conservator of Leo Peach, Incompetent, Appellant, v. Lester PEACH, Gonigam-Bass-Hill, Inc., a corporation, and Internation Harvester Company, a corporation, Appellees.

Gen. No. 65--112.

Appellate Court of Illinois, Second District.

July 6, 1966.

Roger V. Pierson, Princeton, for appellant.

George F. Nichols, Dixon, Gerald W. Fearer, Oregon, William R. Gunner, Dixon, for appellees.

DAVIS, Justice.

Eva Peach, as conservator of Leo Peach, her son, filed suit against Lester Peach, another son, Gonigam-Bass-Hill, Inc., and International Harvester Company, defendants, to recover for certain injuries sustained by Leo Peach. The injuries occurred when a falling bale of hay struck Leo Peach on the head while he was working near a grain elevator which was being used on the Lester Peach farm. The other two defendants were the manufacturer and seller of the elevator in question.

The injury occurred on July 8, 1960, and this suit was not commenced until November 27, 1962--more than two years after the date of the injury. The plaintiff was not appointed conservator for Leo Peach until October 23, 1962.

The defendants filed motions to dismiss the amended complaint because 'at no time during the period from July 8, 1960 to July 8, 1962, was Leo Peach within the age of 21 years or insane or mentally ill or imprisoned on a criminal charge so as to toll the statute of limitations in accordance with the provisions of Chapter 83, Illinois Revised Statutes, section 22.' In its order overruling these motions, the trial Court stated:

'In the original complaint and in the amended complaint the plaintiff alleges that 'Leo Peach, on July 8, 1960, and for many months prior thereto, was by reason of mental deficiency an incompetent person' and that on July 8, 1960, the plaintiff was injured by detailed negligent acts of the defendants. * * *

'The plaintiff has assumed the burden of proof in this case--that the plaintiff was incompetent on the day of the accident and that, of course, he must prove, together with the other allegations in the complaint before he can hope to affect a recovery. He has, however, stated a cause of action and all motions to dismiss are overruled.'

The trial Court ordered that the issue of the mental illness of Leo Peach be severed and tried separately. This single issue was tried before a jury which found for the plaintiff by affirmatively answering the special interrogatory--' Was Leo Peach from the period of time beginning July 8, 1960 up to and including July 9, 1962 an incompetent person?' The trial Court set aside the finding of the jury on the special interrogatory as being 'against the manifest weight of the evidence,' and then granted defendants' motions to dismiss the complaint. The order of dismissal read in part:

'As hereinbefore noted the Court overruled the defendants' motions to dismiss the complaint on the theory that if the plaintiff was incompetent between the dates of July 8, 1960 and July 9, 1962, and could prove it, it would toll the Statute of Limitations.

ORDER

'In the opinion of the Court the plaintiff has failed to make such proof and the Court so finds. The verdict is set aside and the Court overrules itself with reference to the former motions to dismiss. It now grants the motions to dismiss.'

Plaintiff filed neither a motion for new trial of the issue of the incompetency of Leo Peach nor a motion to vacate the aforesaid order dismissing the complaint, but rather, filed notice of appeal from the order of dismissal on the ground that the special finding of the jury was not against the manifest weight of the evidence.

At the outset we must turn to the defendants' contention that the order of dismissal was not a final order, and, hence, this appeal will not lie. In this regard, defendants argue that no judgment was entered for defendants containing the formal pronouncements traditional to final judgments, such as, 'the plaintiff take nothing by virtue of this action and that the defendants go hence without day.' They also urge that the trial Court made no attempt to assess costs or to permit execution to issue for costs.

The new Judicial Article provides an appeal as of right from final judgments of the Circuit Court to the Appellate Court in all cases other than those appealable directly to the Supreme Court, except that after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acquittal. It also provides that appeals to the Appellate Court from other than final judgments of the Circuit Court may be provided for by rule of the Supreme Court. (Constitution of Illinois 1870, Art. 6 sec. 7, S.H.A.) Article 6 became effective January 1, 1964, and sections 77 and 78 of the Civil Practice Act were repealed as of that date, and Supreme Court Rules 30 and 31 then became effective (Ill.Rev.Stat.1963, ch. 110, pars. 77, 78, 101.30 and 101.31).

We acknowledge that the order under consideration in the case at bar is appealable only if it is final. We also concede that there are cases which appear to exalt form over substance with reference to the language in which the order or judgment is couched, in determining its finality. In Johnson v. City of Rockford, 26 Ill.App.2d 133 at page 137, 169 N.E.2d 534 at page 536 (2nd Dist.1960), the Court stated:

'An order providing that certain parts of a complaint be dismissed but not adjudging that plaintiff take nothing nor that defendant go hence without day and containing no words or phrases of equal import, does not dispose of the rights of the parties respecting such dismissed portions and is not a final order from which an appeal will lie. (Citations.) Where the order merely sustains defendant's motion to strike complaint without stating more, such order is not a final appealable order, and appeal therefrom must be dismissed, even though the question of jurisdiction is not raised by the parties.'

However, it has long been the law that 'no particular form was required in the proceedings of an inferior court to render their order a judgment. It is sufficient if it be final, and the party may be injured.' Johnson v. Gillett, 52 Ill. 358, 360 (1869).

More recently, the Supreme Court in Village of Niles v. Szczesny, 13 Ill.2d 45 at page 48, 147 N.E.2d 371 at page 372 (1958), defined a final judgment as follows:

'To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. (Citations.) While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.'

In Kita v. Young Men's Christian Ass'n of Metropolitan Chicago, 47 Ill.App.2d 409, 198 N.E.2d 174 (1st Dist.1964), the appellee moved to dismiss the appeal because the order of the trial court was not a final order. The order, which was set forth at page 426, 198 N.E.2d page 183, read:

'It is further ordered that the Motion to Dismiss the Second Complaint at Law is sustained and the above-entitled cause is hereby dismissed.'

The court noted that the order lacked the words, 'that the plaintiff take nothing or that the defendant go hence without day,' but held that the recital in the order was sufficient to make the judgment final. And, in Green v. Union Elevated R.R. Co., 118 Ill.App. 1, 5 (1st Dist.1905), an order absolutely dismissing a cause without assessing costs, was held to be a final order.

We hold that the only attribute indispensable to the finality of a judgment or order is that it terminate the litigation between the parties to the suit and finally determine, fix and dispose of their rights as to the issues made by the suit. The test of finality lies in the substance and not the form of the judgment or order. Village of Niles v. Szczesny, supra; Johnson v. Gillett, supra; and 6 Nichols Illinois Civil Practice, sections 5925, 5917, 5907 and 5901. To the extent that Johnson v. City of Rockford, supra, holds to the contrary, it is hereby overruled.

In the case at bar, the incompetency of Leo Peach was essential to plaintiff's claim that the Statute of Limitations was tolled. After a trial on this issue, the lower court found that the evidence was not sufficient to sustain plaintiff's burden in this respect. Absent the incompetency of Leo Peach, the plaintiff's action was barred by the Statute of Limitations. The order of the trial court dismissing the cause for the failure to sustain this burden terminated the litigation between the parties and disposed of the case, even though it was not couched in the particular phraseology or form once traditionally used under common law procedures.

It appears that the defendants did not obtain a judgment for costs because they did not bring the matter to the court's attention. We concede that if they had done so, they would have been entitled to a judgment for costs; and if the court had refused to enter such a judgment, it would have been error. The defendants do not urge here, however, that the trial court committed error in its order, but only that the order was not final, absent the cost provisions. The presence or absence of cost provisions in an order or judgment may be error, but such circumstance alone cannot be the basis of determining the finality of a judgment, order or decree. 6 Nichols, supra, sec. 5917.

In the case at bar, the jury made a special finding on the question of the incompetency of Leo Peach. Under section 65 of the Civil Practice Act (Ill.Rev.Stat.1965, ch. 110, par. 65), general verdicts are mandatory except where the nature of a case requires a special verdict. (See: Joint Committee Comments--S.H.Ill.Anno.Stat. ch. 110, par. 65.) The special interrogatory is a modified form of the special verdict (...