Ridgely v. Central Pipe Line Co.

• Decision Date: 22 March 1951
• Docket Number: No. 31818,31818
• Parties: RIDGELY et al. v. CENTRAL PIPE LINE CO. et al.
• Court: Illinois Supreme Court

Page 817

97 N.E.2d 817

409 Ill. 46

RIDGELY et al. v. CENTRAL PIPE LINE CO. et al.

No. 31818.

Supreme Court of Illinois.

March 22, 1951.

A. J. McMahan, and Charles R. Vaughn, both of Olney, for appellants.

Donovan D. McCarty, of Olney, and McGaughey & McGaughey, of Lawrenceville, for appellees.

WILSON, Justice. ¹

The plaintiffs, George H. Ridgely, the record owner of a forty-acre tract of oil land, and Mary Ridgely, his wife, lessors of an oil-and-gas lease, filed an amended complaint in the circuit court of Edwards County against the defendants, Central Pipe Line Company and R. B. Martin, the owners of the oil-and-gas lease, seeking an accounting of their one-eighth share of the oil produced. Ashland Oil and Refining Company, which acquired Central Pipe Line Company's interest in the lease during the pendency of the action, and Oscar Lamble, trustee under a deed in trust of an undisclosed interest in the lease, were also made defendants. By its answer, Central Pipe Line Company admitted stopping payments for royalty oil, averred that, by reason of adverse claims, it had impounded all funds otherwise due plaintiffs, and offered to pay the money so withheld into court pending a determination of its ownership. In addition, Central Pipe Line Company filed a motion alleging that Homer E. Ridgely, George Ridgely's brother, claimed a one-half interest in the land, whereupon Homer E. Ridgely and Ethyl M. Ridgely, his wife, were made parties defendant. Martin and Lamble filed a joint answer averring that they had no interest in the controversy between George and Homer Ridgely.

By their answer and counterclaim, defendants Homer and Ethyl Ridgely, hereafter alone referred to as defendants, denied that George Ridgely was the sole owner of the land in question and sought the declaration of a constructive trust as to an undivided one-half interest in the property and separate accountings against plaintiffs and their lessees. Subsequently, the court sustained plaintiffs' motion to strike the answer and counterclaim and, at the same time, granted defendants leave to amend. April 17, 1950, the court entered an order striking the amended answer and dismissing the amended counterclaim at defendants' costs. July 6, 1950, defendants made a motion to file a second amended answer and counterclaim but did not present a copy of the proposed pleading to the court. An order, dated July 20, 1950, (1) denied defendants' motion to file a second amended answer and counterclaim and (2) also adjudged that defendants take nothing by their first amended counterclaim and that plaintiffs go hence without day and recover their costs from defendants. Defendants prosecute a direct appeal from the order of July 20.

The first question requiring consideration is a determination of the issues involved upon this appeal. Although the notice of appeal extends to the order of July 20, generally, plaintiffs assert that the only issue properly before this court is whether the trial court abused its discretion in denying the motion of defendants to file a second amended counterclaim. Plaintiffs' position to the effect that the question of the sufficiency of the first amended counterclaim is not involved in this appeal is founded upon the action of the trial court in dismissing the first amended counterclaim at defendants' costs on April 17 and the fact that no appeal has been taken from this order. While, standing alone, an order striking a complaint is not final, Calkin v. Roberts Park Fire Protection Dist., 402 Ill. 579, 84 N.E.2d 841, an order striking a complaint, dismissing the action and assessing costs is final. Doner v. Phoenix Joint Stock Land Bank, 381 Ill. 106, 45 N.E.2d 20. Although piecemeal appeals are not permitted, Walters v. Mercantile Nat. Bank, 380 Ill. 477, 44 N.E.2d 429, each case must be decided upon its own facts. Roddy v. Armitage-Hamlin Corp., 401 Ill. 605, 83 N.E.2d 308. In view of the circumstance that the original defendants, the lessees, were mere stakeholders and had no interest in the controversy between the present defendants and plaintiffs, it is evidence that the order of April 17 dismissing defendants' counterclaim and assessing costs fully disposed of all the issues between all the parties and, consequently, was final and appealable.

No motion to vacate or modify the final order of April 17 having been made within thirty days after its rendition, the order thereupon became a conclusive adjudication and the trial court, although retaining jurisdiction of the rest of the case, lost jurisdiction over the counterclaim. Ill.Rev.Stat.1949, chap. 77, par. 82; Barnard v. Michael, 392 Ill. 130, 63 N.E.2d 858. It does not necessarily follow, however, that the trial court had no jurisdiction to hear the motion of July 6 resulting in the order of July 20. The well-established rule, applicable here, is that where a court loses jurisdiction as the result of the expiration of thirty days following the entry of an order dismissing an action, the parties may, by appearing voluntarily and participating in further proceedings, revest the court with jurisdiction over their persons and the subject matter of the action. Brown v. Miner, 408 Ill. 123, 96 N.E.2d 530; Craven v. Craven, 407 Ill. 252, 95 N.E.2d 489; Rossiter v. Soper, 384 Ill. 47, 50 N.E.2d 701; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 75 N.E. 427. By not interposing any objection to the jurisdiction of the court and appearing generally in opposition to defendants' motion to file a second amended counterclaim, plaintiffs waived their right to question the jurisdiction of the court. Craven v. Craven, 407 Ill. 252, 95 N.E.2d 489; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 75 N.E. 427.

Although, in the case at bar, no order was entered vacating the final order of April 17, this fact is immaterial. Since the court had no jurisdiction to entertain a motion to vacate a final order filed more than thirty days after the rendition of the order, it is manifest that it could not reacquire jurisdiction simply by sustaining a motion to vacate. The elements essential to revesting the court with jurisdiction are (1) the active participation by the parties without objection (2) in further proceedings inconsistent with the prior order of dismissal. As all further proceedings upon the merits of a previously dismissed action are inconsistent with a prior order dismissing the action, it follows that any further proceeding upon the merits of a cause operates to nullify the order of dismissal. The hearing on defendants' motion of July 6 was, therefore, sufficient to nullify the order of April 17. Consequently, the part of the order of July 20 adjudging that defendants take nothing by their first amended counterclaim and assessing cost against them was not a mere paraphased repetition of the order of April 17 having no legal effect, but a true final order dismissing the action. The appeal being taken from the order of July 20, the question of the sufficiency of the first amended counterclaim is thus properly before us.

The facts well pleaded in the first amended counterclaim show that, in 1937, and for two years prior thereto, George and Homer Ridgely, hereafter referred to as plaintiff and defendant, respectively, were engaged in a farming partnership in Richland County, where they owned 120 acres of land, most of which was held in plaintiff's name. Plaintiff resided in Chicago, and defendant, who lived in Olney, managed the business and hired an employee to operate the farm. Defendant was also interested in oil-and-gas leases and, in the course of this activity, received a verbal option to purchase for $400 the forty-acre tract in question, which is located in Edwards County about one mile away from the other farm in Richland County. He so advised plaintiff, while the latter was visiting in Olney, and, after inspecting the land together, they agreed to an equal joint purchase, plaintiff further agreeing to lend defendant his share of the purchase price. After returning to Chicago, plaintiff sent defendant a draft for $400 and, on September 27, 1937, defendant consummated the sale. At the direction of defendant, plaintiff was named as the sole grantee, defendant not wanting it known that he was buying land in the area because it might...