Sears v. Sears, s. 53138

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

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.

[85 Ill.2d 255]

Page 611

[52 Ill.Dec. 609] J. Scott Bonner, of Neumark & Bonner, and Larry R. Kane, Chicago, for appellant Gerald A. Sears.

[85 Ill.2d 256] Asher, Goodstein, Pavalon, Gittler, Greenfield & Segal, Chicago (Eugene I. Pavalon, Chicago, of counsel), and Cooney & Stenn, Chicago, for appellant Nancy Drafz.

[85 Ill.2d 255] Bentley, DuCanto & Doss, Chicago (Owen L. Doss, Chicago, of counsel), for appellee Conde S. Sears.

[85 Ill.2d 256] 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 [85 Ill.2d 257] 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

Page 612

[52 Ill.Dec. 610] 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,...