People ex rel. DeVos v. Laurin

• Decision Date: 08 June 1979
• Docket Number: No. 78-2063,78-2063
• Citation: 391 N.E.2d 164,73 Ill.App.3d 219
• Parties: , 29 Ill.Dec. 5 PEOPLE of the State of Illinois, ex rel. Kathleen DeVOS, Plaintiff-Appellant, v. Michael LAURIN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 164

391 N.E.2d 164

73 Ill.App.3d 219, 29 Ill.Dec. 5

PEOPLE of the State of Illinois, ex rel. Kathleen DeVOS Plaintiff-Appellant, v. Michael LAURIN, Defendant-Appellee.

No. 78-2063.

Appellate Court of Illinois, First District, Fifth Division.

June 8, 1979.

[29 Ill.Dec. 6] Bernard Carey, State's Atty., Chicago, for defendant-appellant; Sam Berkley, E. Lynn Perry and John E. Horn, Asst. State's Attys., Chicago, of counsel

Edward L. Sylvestrak, Oak Forest, for plaintiff-appellee.

SULLIVAN, Presiding Justice.

In this appeal, plaintiff contends that the trial court improperly denied motions (1) to reinstate this paternity action after it had been stricken from the trial docket with leave to reinstate; and (2) for a second blood test.

This action was brought on April 5, 1978, on complaint of Kathleen DeVos, who charged that defendant was the father of her child. On May 17, 1978, a blood test was ordered by the trial court at defendant's request. The test was conducted at "(Based on our test results and current understanding of inheritance) In order to be the father of this child, he (defendant) must have the genetic marker "E ". Since (defendant) lacks the genetic marker "E", he is therefore, excluded from the paternity of the child, Keshena Lynn DeVos."

[29 Ill.Dec. 7] Mount Sinai Hospital, and the results were set forth in a letter from Dr. Chang Ling Lee, stating:

Subsequently, a motion of plaintiff for a second blood test to be taken at the complainant's expense was denied, with the trial court stating, "It is not fair to have him do it again now that we have the report that indicates that he has been excluded." The plaintiff moved to strike the cause from the docket with leave to reinstate. On the same day that this motion was granted, plaintiff moved to reinstate and, at a hearing on a later date, the court inquired of plaintiff as to whether it could make a showing of the probability of success in the event the case was reinstated. Plaintiff responded that it could not make such a showing unless a second blood test was ordered or the persons who administered the first test could be cross-examined. The trial court denied the motion to reinstate, but the record discloses that no order of dismissal has been entered. Plaintiff purports to appeal from the denial of reinstatement.

OPINION

Initially, we are faced with the question of whether the order denying plaintiff's motion to reinstate the case to the trial calendar was final and appealable under Illinois Supreme Court Rule 301. (Ill.Rev.Stat.1977, ch. 110A, par. 301.) We conclude that it was not. The cases provide that "(a)n order of court which leaves a cause still pending and undecided is not a final order." (Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill.App.3d 1053, 1057, 4 Ill.Dec. 522, 524, 360 N.E.2d 458, 460; LaVida, Inc. v. Robbins (1961), 33 Ill.App.2d 243, 245, 178 N.E.2d 412, 413.) If the order appealed from is not a final one and is not otherwise specifically appealable by rule, a reviewing court is bound to dismiss the appeal. Impey v. City of Wheaton (1965), 60 Ill.App.2d 99, 208 N.E.2d 419; General Electric Co. v. Gellman Mfg. Co. (1943), 318 Ill.App. 644, 48 N.E.2d 451 (abstract).

In determining the appealability here of the order denying reinstatement, we initially note that it was on plaintiff's motion that the trial court ordered the case "stricken off call with leave to reinstate." This is called an "SOL" order and, while not provided for in any rule or statute, it is nonetheless a common practice in the trial courts, albeit almost exclusively in criminal matters. The few reported cases which mention this practice advise us that "(t)he effect of striking a cause from the docket is that it cannot be tried until it is again placed on the docket. Its status is not otherwise changed." (People v. Kidd (1934), 357 Ill. 133, 137, 191 N.E. 244, 246.) "A case stricken from the docket with leave to reinstate is a pending case." (People v. Johnson (1934), 278 Ill.App. 204, 207, Rev'd on other grounds (1936), 363 Ill. 45, 1 N.E.2d 386.) Upon being stricken, the action remains undisposed of and may still be placed on the docket and brought to trial (People v. St. John (1938), 369 Ill. 177, 15 N.E.2d 858; People v. Kidd; Blalock v. Randall (1875), 76 Ill. 224), and it excludes the conclusion that the case is at an end but implies that it is still subject to the action of the court (People v. Kidd; Tibbs v. Allen (1863), 29 Ill. 535). Further, the court possesses a "discretionary power" to allow a subsequent motion to reinstate. Tibbs v. Allen.

In the case at bar, an order was entered striking the case from the call with leave to reinstate, and the order appealed from, while denying reinstatement, contained no language of dismissal. Plaintiff nonetheless contends that because a trial may not be had until reinstatement, the order of denial thereof effectively dismissed the case and is therefore final and appealable. In the light of the cases cited above, however, it appears to us that when the motion to reinstate was denied, the case continued in the same status it remained stricken from the trial docket but was still subject to the action of the trial court. Indeed, under the reasoning of those cases, the circumstances could have been such that the trial court might have granted a subsequent motion to reinstate. We therefore conclude that, because the trial court's order denying plaintiff's motion to reinstate left the case pending, it cannot be characterized as "final" under Rule 301. (Oak Brook Bank v. Citation Cycle Co.; LaVida v. Robbins.) Lacking such finality and because no other rule permitting this appeal is argued or applicable, we hold that the order in question is not appealable and that this appeal must be dismissed. Impey v. City of Wheaton; General Electric Co. v. Gellman Mfg. Co.

We realize that because of the scarcity of law in this area, trial courts have been afforded little guidance regarding motions to reinstate SOL orders. We believe that henceforth when a party's motion to strike a case from the trial docket with leave to reinstate is granted, the case should be reinstated on that party's subsequent motion, but upon a showing by the opposing party that it should not be reinstated the trial judge may in his discretion deny the motion. Where reinstatement is denied and the trial judge intends it to be a dismissal, language to that effect should be included in the order so that an appeal may be properly taken. If the trial court denies reinstatement but refuses to act further, mandamus would be the appropriate remedy to compel the performance of the ministerial act of entering an order of dismissal. People ex rel. Ward v. Salter (1963), 28 Ill.2d 612, 192 N.E.2d 882; People ex rel. Dolan v. Dusher (1952), 411 Ill. 535, 104 N.E.2d 775; National Fire Insurance Co. of Hartford v. Municipal Court of Chicago (1961), 28 Ill.App.2d 401, 171 N.E.2d 687.

Because the order in question was not appealable and the matter remains pending in the trial court, we will consider the contention of plaintiff that the trial court improperly based the denial of reinstatement on its belief that plaintiff could not succeed on the merits in view of the exclusionary results of the blood test. If in fact this was the basis of the court's ruling, we believe it was improper. Section 2 of the "Act on Blood Tests to Determine Paternity" (hereinafter cited as Blood Test Act) provides that "(t)he experts (who conduct the blood tests) shall be called by the court as witnesses to testify to their findings of exclusion and shall be subject to cross-examination by the parties." (Ill.Rev.Stat.1977, ch. 40, par. 1402.) Thus, we believe that in an action of this kind the exclusionary report in itself should not be used to deprive plaintiff of a...