La Vida, Inc. v. Robbins

• Decision Date: 04 December 1961
• Docket Number: Gen. No. 11485,No. 21604,A,21604
• Citation: 178 N.E.2d 412,33 Ill.App.2d 243
• Parties: LA VIDA, INC., an Illinois Corporation, and LaSalle National Bank, a National Banking Association as Trustee under the provisions of LaSalle National Bank Trustppellants, v. Samuel A. ROBBINS et al., (Victor L. Glader and John A. Tazioli, d/b/a Glader and Taziola Excavating Co., a partnership, Appellees).
• Court: United States Appellate Court of Illinois

Page 412

178 N.E.2d 412

33 Ill.App.2d 243

LA VIDA, INC., an Illinois Corporation, and LaSalle National Bank, a National Banking Association as Trustee under the provisions of LaSalle National Bank Trust No. 21604, Appellants, v. Samuel A. ROBBINS et al., (Victor L. Glader and John A Tazioli, d/b/a Glader and Taziola Excavating Co. a partnership, Appellees).

Gen. No. 11485.

Appellate Court of Illinois, Second District, First Division.

Dec. 4, 1961.

Grosshandler, Pauker & Shelly, Highland Park, Edward R. Fischl, Oak Park, for appellants.

Dixon & Seidenfeld, Waukegan, Drake Leoris, Chicago, for appellees.

SMITH, Justice.

Plaintiffs appeal from an order setting aside their default judgment. Defendants' successful attack was launched pursuant to Section 50(6) of the Civil Practice Act [Ill.Rev.Stat.1959, Chap. 110, Sec. 50(6)], which authorizes relief of this kind on motions filed within thirty days after entry. Plaintiffs' lawsuit, therefore, is back again at the complaint stage. As a preliminary point defendants could question the right of the plaintiffs to appeal this order. They do not. Indeed, both parties apparently subscribe to the proposition that the order is appealable. Their briefs by silence would lure us into an opinion as to the propriety of the order itself, without any initial inquiry by us as to whether it should even be here. We reject the lure. Prsuppositions do not determine appellate jurisdiction. Our power rests on something much more solid than the shifting sands of what the litigants may desire of us.

To be specific, our review is limited to orders that can be characterized as final. Section 77(1) of the Civil Practice Act [Ill.Rev.Stat.1959, Chap. 110, Sec. 77(1)] spells this out with precision: 'Appeals shall lie to the Appellate * * * Court, in cases in which any form of review may be allowed by law, to review the final judgments, orders or decrees of the circuit court * * *.' An order of court which leaves a cause still pending and undecided is not a final order. Harris v. Aetna Insurance Company, 19 Ill.App.2d 577, 154 N.E.2d 862; People ex rel. v. Fisher, 335 Ill. 406, 167 N.E. 59. Before we can call an order final, it must be dispositive of the issues and rights of the litigants. An order is final only when it terminates once and for all, the litigation or some definite part thereof. In that happenstance, it then becomes the law's last word on the matter. The loser, if he would continue the litigation, must come up here or higher, and then only for the purpose of having his final judgment reviewed. Interim appeals are not for us. In 2 I.L.P. Appeal and Error § 106, p. 188 it is said:

'A final order, judgment, or decree usually is defined as one which disposes of the merits of the case and the rights of the parties, either on the entire controversy or on some separate and definite branch thereof, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. A judgment which does not disclose that it is in favor of any one is not a final judgment. * * * A final decree is not necessarily the last order in the case, but it is the order or decree which fixes and settles the rights of the parties.'

The order appealed from is interlocutory. The controversy presently remains undetermined. No one has won or lost. With the judgment set aside there still remains the complaint. This piece of litigation, far from being over, has just begun. At this point, finality in the sense of Sec. 77, C.P.A. is a long way off. We quote again from 2 I.L.P. at page 211:

'An order setting aside or vacating a judgment * * * is interlocutory and not appealable, as where a default judgment is set aside merely for the purpose...