Sears v. Sears

• Decision Date: 04 June 1981
• Docket Number: Nos. 53138,53186,s. 53138
• Citation: 52 Ill.Dec. 608,85 Ill.2d 253,422 N.E.2d 610
• Parties: , 52 Ill.Dec. 608 Gerald A. SEARS, Appellant, v. Conde S. SEARS, Appellee. Nancy DRAFZ, Appellant, v. PARKE, DAVIS & COMPANY, Appellee.
• Court: Illinois Supreme Court

Page 610

422 N.E.2d 610

85 Ill.2d 253, 52 Ill.Dec. 608

Gerald A. SEARS, Appellant, v. Conde S. SEARS, Appellee.

Nancy DRAFZ, Appellant, v. PARKE, DAVIS & COMPANY, Appellee.

Nos. 53138, 53186.

Supreme Court of Illinois.

June 4, 1981.

J. Scott Bonner, of Neumark & Bonner, and Larry R. Kane, Chicago, for appellant Gerald A. Sears.

Asher, Goodstein, Pavalon, Gittler, Greenfield & Segal, Chicago (Eugene I. Pavalon, Chicago, of counsel), and Cooney & Stenn, Chicago, for appellant Nancy Drafz.

Bentley, DuCanto & Doss, Chicago (Owen L. Doss, Chicago, of counsel), for appellee Conde S. Sears.

Hinshaw, Culbertson, Moelman, Hoban & Fuller Chicago (D. Kendall Griffith, James R. Pancheri and Stephen R. Swofford, Chicago, of counsel), for appellee Parke, Davis & Co.

SIMON, Justice:

These consolidated cases involve successive post-judgment motions which merely repeat what was set forth or could have been set forth in the first post-judgment motion. The questions they raise are whether the circuit court can allow such a motion and whether filing one extends the time for appeal. These unrelated cases in which we granted leave to appeal involve orders entered by the circuit court of Cook County.

Sears v. Sears (cause No. 53138) is an example of endless matrimonial litigation; but it is unnecessary to relate the entire history of the case. On August 24, 1977, judgment was entered for Conde Sears against Gerald Sears for $13,874.80 for various expenses and arrearages in support. On September 15, Gerald moved to reopen the judgment on the ground that he had justifiably not known of a hearing set for August 23, which had proceeded on Conde's evidence alone and had been the basis of the next day's judgment. The motion was denied on December 6. On January 4, 1978, Gerald filed a second motion, making the same argument in more detail. The court heard evidence about who had said what to whom and what Gerald should have known about the August 23 hearing, and on July 12 denied the motion. On August 1, Gerald appealed all the foregoing orders. The appellate court, by order, dismissed Gerald's appeal as untimely filed (79 Ill.App.3d 1202, 38 Ill.Dec. 125, 403 N.E.2d 140).

Drafz v. Parke, Davis & Co. (cause No. 53186) involves a failure-to-warn count of a product liability suit. The defendant moved to strike and dismiss on the ground that in her "amended third amended complaint" plaintiff failed to allege that the defendant manufacturer knew of the danger, as required by Woodill v. Parke Davis & Co. (1978), 58 Ill.App.3d 349, 15 Ill.Dec. 900, 374 N.E.2d 683, aff'd (1980), 79 Ill.2d 26, 37 Ill.Dec. 304, 402 N.E.2d 194, a case then before the appellate court on a motion for rehearing. On October 12, 1978, the defendant's motion was allowed, the count was dismissed, and the court made a Rule 304(a) finding, rendering the dismissal enforceable and appealable (73 Ill.2d R. 304(a)). On November 13 (the 30th day was a Saturday), Nancy Drafz moved to set aside the dismissal on the ground that the defect in the complaint could be easily cured by amendment. The motion was denied on November 15. The judge who had entered these orders then retired. Ms. Drafz filed a second motion on December 11, before a new judge. In her brief, she portrays the motion as in part directed not against the judgment but against new errors in the denial of the first motion; the record however, demonstrates that the motion was little more than a slightly lengthened redraft of the first. That same day, 26 days after the order denying the first post-judgment motion and four days before her time to appeal expired, the new judge continued the motion, stayed the judgment and the first post-judgment order, and ordered that the time for appeal should not run. On February 13, 1979, the judge set aside the judgment and allowed leave to amend the complaint. On appeal under Supreme Court Rule 308 (73 Ill.2d R. 308), the appellate court held that the circuit court was without jurisdiction to consider the second motion or set aside the judgment, and reversed, reinstating the judgment for Parke, Davis and Company. 80 Ill.App.3d 540, 36 Ill.Dec. 95, 400 N.E.2d 515.

The principles that govern the procedural status presented by these cases were settled in Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900. There this court held that a second post-judgment motion, filed more than 30 days after judgment but within 30 days of the denial of the first motion, that only repeats what was in the first motion or raises points that could have been raised the first time does not extend the time for appeal. Deckard also noted that the circuit court could not allow a motion of that type. Anything in Fultz v. Haugan (1971), 49 Ill.2d 131, 135, 273 N.E.2d 403, which appears to contradict the holding in Deckard or to expand the use of post-judgment motions beyond the time limits announced in Deckard was dictum. The issue decided in Fultz was that a motion for leave to amend a complaint does not extend the time for appeal or the time for filing other motions.

An order denying a post-judgment motion is not itself a judgment, as that word is used in article VI, section 6, of the 1970 Constitution or in Supreme Court Rule 303 (73 Ill.2d R. 303), and is not an appealable order. But as a practical matter the denial of a timely first post-judgment motion is always reviewable, because on appeal of the judgment the appellant may bring up all related orders entered before the notice of appeal and not previously appealable, including the denial of a post-judgment motion. Sections 50(5), 68.1, and 68.3 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, pars. 50(5), 68.1, 68.3) do not authorize a motion directed against a judgment unless filed within 30 days of the judgment or any extension of time which maybe allowed by the trial court (Ill.Rev.Stat.1979, ch. 110, pars. 68.1, 68.3). Such a motion not only extends the circuit court's jurisdiction, also extends the appellate court's potential jurisdiction, the time within which a notice of appeal may be filed, until 30 days after the motion is denied. (73 Ill.2d R. 303.) Such a motion, while it may stay the judgment (Ill.Rev.Stat.1979, ch. 110, pars. 68.1, 68.3), but does not...