Phillips v. O'Connell

• Decision Date: 03 April 1944
• Docket Number: Gen. No. 42979.
• Citation: 54 N.E.2d 84,322 Ill.App. 164
• Parties: PHILLIPS v. O'CONNELL ET AL.
• Court: United States Appellate Court of Illinois

322 Ill.App. 164

54 N.E.2d 84

PHILLIPS

v.O'CONNELL ET AL.

Gen. No. 42979.

Appellate Court of Illinois, First District, First Division.

April 3, 1944.

Appeal from Circuit Court, Cook County; Walter J. LaBuy, Judge.

Action by Irving Berry Phillips against Agnes Dunne O'Connell, etc., and others for foreclosure of a trust deed and entry of deficiency decree and for judgment on indebtedness secured by trust deed. From an order transferring to the law side of the court, the issues on indebtedness and denying motion for a deficiency decree, plaintiff appeals.

Appeal dismissed. Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for appellant.

George A. Bosomburg, of Chicago, for appellees Agnes D. O'Connell and Edith E. Dunne, individually and in their representative capacity.

NIEMEYER, Justice.

The complaint consists of two counts. Count one is in equity, for the foreclosure of a trust deed and entry of a deficiency decree against the signers of an alleged extension agreement, Count two is in law, for judgment on the indebtedness secured by the trust deed.

A decree of foreclosure was entered reserving jurisdiction, in case there should be a deficiency in the proceeds of sale, to determine whether the defendants were personally liable under the alleged extension agreement for any such deficiency; a deficiency resulted; the cause was referred to a special commissioner on the question of the personal liability of the defendants for such deficiency; on the hearing before the trial court, on exceptions to the report of the special commissioner, defendants renewed their motion, made several times before,that count two be transferred to the law side of the court for a trial before a jury. The trial court found that the original makers of the mortgage notes were primarily liable and that the obligation of defendants under the alleged extension agreement was that of guarantors of the payment of the notes. An order was entered transferring to the law side of the court, for a trial by jury, the issues under count two of the complaint, denying plaintiff's motion for a deficiency decree, striking the special commissioner's report from the files and reserving jurisdiction on the question of the fees of the special commissioner and the solicitors until the determination and disposition of the issues under count two on the law side of the court. From this order, transferring count two to the law side of the court and denying a deficiency decree, plaintiff appeals, contending that the alleged extension agreement contained an assumption of the mortgage debt, created a direct and primary obligation of defendants and entitled plaintiff to a deficiency decree under count one in equity. Defendants moved to dismiss the appeal on the ground that the two provisions appealed from are interlocutory orders and that plaintiff failed to serve notice on certain other defendants whose interests may be vitally affected by the appeal.

Because of the view taken by us on the motion to dismiss the appeal, it will be unnecessary to discuss the merits of the case. If the complaint had consisted only of count one, we would have no hesitancy in holding that the order denying a deficiency decree was a final, appealable order. It made a final disposition upon the merits of the equitable issues raised under count one and denied further relief in equity to the plaintiff. Free v. Successful Merchant, 342 Ill. 27, 173 N.E. 753. The finality of the order is not affected by the fact that the court reserved jurisdiction of the question of the special commissioner's and solicitors' fees. Rettig v. Zander, 364 Ill. 112, 116, 4 N.E.2d 30;Bennett v. Weber, 323 Ill. 283, 293, 154 N.E. 105;Cowdery v. Northern Trust Co., 321 Ill.App. 243, 267, 53 N.E.2d 43. Plaintiff elected to join with his equitable claim an action at law for the recovery of a personal judgment against the defendants upon the identical indebtedness as to which he sought a...