Rotogravure Service, Inc. v. R. W. Borrowdale Co.

Decision Date23 September 1975
Docket NumberNo. 61005,61005
Citation36 Ill.App.3d 606,344 N.E.2d 554
PartiesROTOGRAVURE SERVICE, INC., an Illinois Corporation, Plaintiff-Appellee, v. R. W. BORROWDALE COMPANY, a Delaware Corporation, and Russell W. Borrowdale, Sr., Defendants-Appellants. R. W. BORROWDALE COMPANY, Plaintiff-Appellant, v. INROL, INC., an Illinois Corporation, et al., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

James N. Kosmond, David B. Yavitz, Chicago (Boodell, Sears, Sugrue, Giambalvo & Crowley, Chicago, of counsel), for plaintiff-appellee.

Guy & Rooney, Chicago, for defendants-appellants.

DOWNING, Presiding Justice.

R. W. Borrowdale Company (hereinafter Borrowdale) appeals an order of the circuit court vacating a portion of a judgment on an oral contract. The vacated judgment denied damages to Rotogravure Service, Inc. (hereinafter Rotogravure after granting it specific performance of the alleged oral contract. The order appealed from (1) held the specific performance originally granted was no longer economically practical, (2) vacated the original denial of damages, and (3) ordered a hearing be held to determine the amount of damages to be awarded to Rotogravure. Borrowdale appeals the vacating of the judgment denying damages, and Rotogravure moves to dismiss that appeal because the order from which Borrowdale appeals is not final.

The issues raised by the appeal and motion to dismiss are: (1) whether the order appealed from is a final and appealable order; and (2) whether the trial judge had jurisdiction to vacate the judgment denying damages when there was no section 72 motion before the court and more than 30 days had lapsed since the judgment was entered. 1

This case stems from two actions resulting from an oral agreement whereby Borrowdale allegedly agreed to arrange for and finance Rotogravure's purchase of an Acigraf printing system to be imported from Milan, Italy. The Acigraf system was delivered to Rotogravure, but difficulties arose in the performance of the agreement, and on November 13, 1967, Borrowdale filed a replevin suit against Rotogravure in the law division of the circuit court of Cook County.

On December 1, 1967 Rotogravure initiated a suit in the chancery division of the circuit court of Cook County alleging Borrowdale's breach of an oral agreement between the parties concerning the Acigraf system. In Count I of this complaint Rotogravure prayed for specific performance of the agreement, and in Count II Rotogravure prayed for damages resulting from the alleged breach. 2 Counts III and IV of this complaint are not involved in this appeal.

On December 4, 1967 the replevin action and the chancery suit were consolidated for trial. On that same date, the sheriff served a writ of replevin on Rotogravure and removed the Acigraf system from Rotogravure's place of business and delivered it to Borrowdale.

After hearing evidence and arguments presented by counsel, the court entered its judgment on December 5, 1972. The judgment order of the consolidated cases made separate findings of fact for the chancery and replevin suits and divided its ruling accordingly. Part A of the order dealt with the chancery suit and entered judgment for Rotogravure as to specific performance, but ruled for Borrowdale as to damages and Counts III and IV, holding Rotogravure had 'not sustained the allegations contained in Counts II, III and IV of its complaint.' Part B of the order dealt with the replevin suit and ruled for Rotogravure, ordering Borrowdale to return the equipment to Rotogravure's place of business.

Paragraph 7 of Part B (replevin suit) stated the court 'reserves and retains jurisdiction of this cause and all of the parties hereto for the purpose of entering such other and further orders not inconsistent with the provisions of this Judgment and Decree, and as may be necessary to implement or effectuate the provisions hereof.' Paragraph 8 of this section ruled there was no just reason for delaying the enforcement or appeal of this judgment. Part A (chancery suit) had no similar language, but paragraphs 7 and 8 of Part B were the concluding words of the entire order of December 5, 1972.

Borrowdale filed a notice of appeal from the December 5, 1972 judgment, but this appeal was dismissed by the appellate court. 3 Rotogravure did not appeal from the trial court's decision, nor did it ever file any motion to vacate the portion of the order denying its prayer for damages.

On March 22, 1973, Rotogravure filed a motion in the trial court for a rule to show cause against Borrowdale for its failure to comply with the judgment and decree by refusing to return and repair the Acigraf printing equipment. While Rotogravure's petition for rule to show cause was still pending, Rotogravure filed a new action at law in the circuit court to recover for damages resulting from Borrowdale's wrongful replevin. That action was still pending at the time of oral argument before this court, as is a motion to consolidate it with the damage hearing ordered by the trial court on August 29, 1974.

Borrowdale answered the rule to show cause alleging it was not receiving the needed cooperation of Rotogravure to comply with the decree; that the decree was too vague and uncertain; and that Borrowdale was awaiting advice from Acigraf as to the possibility of repairing and making the equipment operable. An engineer from Acigraf visited Borrowdale's premises and inspected the equipment. He reported that the cost of making the Acigraf system operable would be prohibitively expensive.

At the conclusion of the hearings on the petition for rule to show cause, the trial court entered an order allowing Rotogravure to withdraw its amended petition for rule to show cause, and ruled Rotogravure was still entitled to specific performance, but since specific performance was economically impractical, the December 5, 1972 judgment denying damages was vacated and a hearing was set to determine what damages should be paid to Rotogravure as a result of Borrowdale's breach of the alleged oral agreement.

This order entered August 29, 1974 vacating the damage portion of the December 5, 1972 judgment was divided into two parts similar to the December 5, 1972 judgment Part A vacated the portion of the December 5, 1972 chancery judgment denying damages and set a date for a new hearing to determine what those damages should be; and Part B stayed the replevin action and the issuance of the writ of Retorno habendo pending further order of the court. The order specifically stated the court retained jurisdiction of the matter and that the order was 'not to be considered final or appealable.'

Yet, Borrowdale filed its notice of appeal from the vacation of the damage judgment. Rotogravure made a motion in the trial court to dismiss this appeal. The trial court denied Rogogravure's motion without prejudice to raise it again in the appellate court. The trial court further stated in its denial of the motion that the order was interlocutory and not certified for appeal by the trial court.

Rotogravure renewed its motion to dismiss the appeal in this court which was taken with the appeal. Both the appeal and the motion to dismiss are now considered.

I.

The first issue before the court is whether the order appealed from is an appealable order. Supreme Court Rule 301 (Ill.Rev.Stat.1973, ch. 110A, par. 301) provides:

'Every final judgment of a circuit court in a civil case is appealable as of right.'

Thus, if final, the order of August 29, 1974 is appealable.

However, to be final a judgment must dispose of or terminate the litigation or some definite part of it. If jurisdiction is retained for the future determination of...

To continue reading

Request your trial
9 cases
  • Block & Co., Inc. v. Storm Printing Co.
    • United States
    • United States Appellate Court of Illinois
    • 28 juin 1976
    ...605, 83 N.E.2d 308 cited in Block v. Block (1974), 23 Ill.App.3d 277, 278, 319 N.E.2d 116. See also Rotogravure Service v. R. W. Borrowdale Co. (1976), 36 Ill.App.3d 606, 609, 344 N.E.2d 554; Factor v. Factor (1975), 27 Ill.App.3d 594, 596, 327 N.E.2d It follows necessarily that this appeal......
  • Village of Burnham v. Cook
    • United States
    • United States Appellate Court of Illinois
    • 3 juillet 1986
    ...of opinion" regarding the Village of Burnham's authority to adopt an implied consent ordinance (Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1975), 36 Ill.App.3d 606, 610, 344 N.E.2d 554). Plaintiff understandably desires to obtain an authoritative decision on the validity of its impli......
  • Rotogravure Service, Inc. v. R. W. Borrowdale Co.
    • United States
    • United States Appellate Court of Illinois
    • 9 octobre 1979
    ...after this court dismissed an appeal involving the same parties and subject matter. See Rotogravure Service v. R. W. Borrowdale Co. (1st Dist. 1975), 36 Ill.App.3d 606, 344 N.E.2d 554. This lengthy litigation stems from two actions resulting from an oral agreement whereby Borrowdale alleged......
  • Guzik, In re
    • United States
    • United States Appellate Court of Illinois
    • 9 août 1993
    ...for the future determination of matters of substantial controversy, the order is not final. (Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1975), 36 Ill.App.3d 606, 609, 344 N.E.2d 554.) Here, the court's order did not completely and finally determine respondent's rights or status, and ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT