Vitale v. Dorgan

• Decision Date: 14 February 1975
• Docket Number: No. 74--158,TOM-JIM,T-J,74--158
• Citation: 323 N.E.2d 616,25 Ill.App.3d 941
• Parties: Frank VITALE and Theresa Vitale, Plaintiffs-Appellants, v. James J. DORGAN and Helene A. Dorgan, Defendants-Appellees, and Tom-Jim Corporation, Intervening Defendant.CORPORATION, an Illinois Corporation, a/k/a 'Corporation,' Plaintiff-Appellee, v. Frank VITALE and Theresa Vitale, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 616

323 N.E.2d 616

25 Ill.App.3d 941

Frank VITALE and Theresa Vitale, Plaintiffs-Appellants, v. James J. DORGAN and Helene A. Dorgan, Defendants-Appellees, and Tom-Jim Corporation, Intervening Defendant.

TOM-JIM CORPORATION, an Illinois Corporation, a/k/a 'T-J

Corporation,' Plaintiff-Appellee, v. Frank VITALE and Theresa Vitale, Defendants-Appellants.

No. 74--158.

Appellate Court of Illinois, Second District.

Feb. 14, 1975.

Richard W. Husted, Elgin, for plaintiffs-appellants.

Vincent J. Biskupic, Oak Brook, for defendants-appellees.

THOMAS J. MORAN, Presiding Justice.

The proceedings in this appeal were commenced on September 18, 1973, when Frank and Theresa Vitale (plaintiffs) filed a complaint (73LM8303) under the Forcible Entry and Detainer Act. (Ill.Rev.Stat.1973, ch. 57, sec. 1 et seq.) The complaint alleged that plaintiffs leased a restaurant to a corporation, subsequently dissolved, and that James J. Dorgan and Helene A. Dorgan (defendants) were in unlawful possession of the restaurant.

On September 24, 1973, the Tom-Jim corporation (corporation) filed a complaint (73MR15219) for declaratory judgment against the plaintiffs alleging it had a right to possession of the restaurant based upon a lease; that the lease contained an option to renew for a period of 5 years; and that the corporation had renewed the lease. The complaint requested the court to determine the rights of the parties and the validity of the renewal notice and to enjoin plaintiffs from interfering with the corporation's possession of the premises.

Defendants, represented by the same attorney as the corporation, raised an affirmative defense in their answer and counterclaimed by way of a declaratory judgment action. The defense and counterclaim raised the same issues as those raised in the corporation's complaint.

On October 5, 1973, the corporation petitioned to intervene in plaintiff's action. This was allowed over plaintiff's objection. The corporation's answer included an affirmative defense which was the same as defendants'. In granting leave to intervene, the court ordered the corporation's declaratory action consolidated Into plaintiff's action and further ordered both suits to proceed under the number assigned to the forcible entry and detainer suit.

After hearing, the court, on March 15, 1974, entered an order holding against the plaintiffs in favor of the defendants and the corporation in the forcible entry and detainer action. The same order held against the plaintiffs and in favor of the defendants and the corporation with regard to their respective actions for declaratory judgment. On April 11, 1974, 27 days after entry of the order, plaintiffs filed a notice of appeal.

Pending appeal, the corporation moved this Court to dismiss the appeal for plaintiff's failure to file a notice of appeal within 5 days as required by Section 19 of the Forcible Entry and Detainer Act. We dismissed the forcible entry and detainer action (73LM8303) but allowed the appeal to proceed under the declaratory judgment action (73MR15219). After a review of the record and the law, we now conclude that it was improper to allow the appeal to proceed.

There is no question that plaintiffs were subject to the five day limitation for filing a notice of appeal from the adverse ruling on their complaint. A question arises as to the time limit for appeal, however, because of the corporation's declaratory judgment action having been consolidated with plaintiff's complaint. Resolution of the question requires a determination of whether the cases were consolidated for the purpose of trial or for disposition. If the latter, the procedure for perfecting an appeal is governed by the surviving cause (Garmisa v. Garmisa, 4 Ill.App.3d 231, 280 N.E.2d 445 (1972),) in this instance, plaintiffs' suit for forcible detainer which lawfully requires notice of appeal to be filed within 5 days. Hamilton Corp. v. Alexander, 53 Ill.2d 175, 179--80, 290 N.E.2d 589 (1972).

A court may consolidate actions whenever such consolidation can be done without prejudice to a substantial right. (Ill.Rev.Stat.1973, ch. 110, § 51.) Consolidation may take one of three forms: (1) where several cases are pending involving substantially the same subject matter, the court may stay proceedings in all but one, the decision in the others being determined by that reached...