{ "id": 1599811, "name": "E. M. S. Co., an Illinois Corporation, Plaintiff-Appellant, v. Donald Brandt, Individually, and 560 Tool Co., an Illinois Corporation, Defendants-Appellees", "name_abbreviation": "E. M. S. Co. v. Brandt", "decision_date": "1968-12-18", "docket_number": "Gen. No. 52,840", "first_page": "445", "last_page": "448", "citations": [ { "type": "official", "cite": "103 Ill. App. 2d 445" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "234 NE2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill App2d 194", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2819244 ], "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0194-01" ] }, { "cite": "147 NE2d 371", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2775284 ], "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/13/0045-01" ] }, { "cite": "229 NE2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill2d 588", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2863685 ], "pin_cites": [ { "page": "593-594" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0588-01" ] }, { "cite": "211 NE2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill App2d 12", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5296417 ], "pin_cites": [ { "page": "14-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/63/0012-01" ] } ], "analysis": { "cardinality": 306, "char_count": 4494, "ocr_confidence": 0.58, "pagerank": { "raw": 6.863473299096966e-07, "percentile": 0.964450244010365 }, "sha256": "90e6115157cc4576c4674beeaefb3211e1936562670bc6838938e13f3ec30b15", "simhash": "1:9e6d0127b2b32350", "word_count": 773 }, "last_updated": "2023-07-14T18:47:33.766444+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DRUCKER, P. J. and STAMOS, J., concur." ], "parties": [ "E. M. S. Co., an Illinois Corporation, Plaintiff-Appellant, v. Donald Brandt, Individually, and 560 Tool Co., an Illinois Corporation, Defendants-Appellees." ], "opinions": [ { "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nThis cause comes up for disposition on defendant\u2019s motion to dismiss the appeal, which motion was filed in this court on November 19,1968.\nThere are two defendants. On September 12, 1967, judgment by default was entered against one defendant only. The judgment was vacated by an order entered September 28, 1967. Plaintiff seeks to appeal from that order.\nDefendants contend that the order of September 28 was not appealable because (1) there were multiple parties, and the order did not affect plaintiff\u2019s claim against the other defendant, and (2) the court did not enter the finding necessary to make the order appealable under Supreme Court Eule 304, that there was \u201cno just reason for delaying enforcement or appeal.\u201d El Eev Stats (1967), c 110A, \u00a7 304.\nPlaintiff has responded to defendant\u2019s motion by reciting that, at the time the order was entered, the judge had been requested to find that there was no reason to delay appeal, but had refused to do so. Plaintiff then argues that this refusal, under the circumstances of the case, constituted an abuse of the court\u2019s discretion, thus rendering the order appealable without the finding prescribed by the rule.\nPlaintiff further points out that when the order was entered, the trial court assured counsel that the order was final and appealable as entered. In this the court was wrong. Plaintiff is also wrong in the position it takes in opposing the pending motion. And defendants are wrong in the grounds they suggest in support of the motion.\nAssuming a final judgment as to only one of two defendants, there could be no appeal without the express finding called for by the rule. The making of such a find-mg is discretionary with the trial court, but there is no provision for review of an abuse of that discretion when a finding is refused. The absence of the finding in such a judgment\u2014for whatever reason\u2014leaves the judgment final but unenforceable and unappealable.\nThe position of plaintiff in this case is incorrect, however, since the special finding of Rule 304 could not render appealable the order of September 28. An order vacating a prior judgment, under the circumstances of this case, simply leaves the case pending. It is \u201can order which is not final in its character.\u201d (See Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 14-19, 211 NE2d 32, which was decided under section 50(2) of the Practice Act, then containing the essential provisions now found in Rule 304.) Therefore, it is not a \u201cfinal judgment\u201d even as to the one defendant, and cannot be made appealable by the rule\u2019s prescription. Martino v. Barra, 37 Ill2d 588, 593-594, 229 NE2d 545.\nWhile this contention was not made on defendants\u2019 motion, when we are without jurisdiction to determine an appeal, it is our duty to dismiss it, however the matter may have come to our attention. Village of Niles v. Szczesny, 13 Ill2d 45, 49, 147 NE2d 371; Harlem Sav. Ass\u2019n v. Lesniak, 91 Ill App2d 194, 195, 234 NE2d 160.\nThis appeal is dismissed.\nAppeal dismissed.\nDRUCKER, P. J. and STAMOS, J., concur.\nRule 304 provides:\nJudgments as to Fewer Than All Parties or Issues\nIf multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court\u2019s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.\nWe do not, for example, refer to a proceeding under section 72 of the Civil Practice Act. Ill Rev Stats (1967), c 110, \u00a7 72.", "type": "majority", "author": "MR. JUSTICE ENGLISH" } ], "attorneys": [ "Echt & Getzoff, of Chicago, for appellant.", "Aplon, Bennett, Alexander & Levine, of Chicago, for appellees." ], "corrections": "", "head_matter": "E. M. S. Co., an Illinois Corporation, Plaintiff-Appellant, v. Donald Brandt, Individually, and 560 Tool Co., an Illinois Corporation, Defendants-Appellees.\nGen. No. 52,840.\nFirst District, Fourth Division.\nDecember 18, 1968.\nEcht & Getzoff, of Chicago, for appellant.\nAplon, Bennett, Alexander & Levine, of Chicago, for appellees." }, "file_name": "0445-01", "first_page_order": 451, "last_page_order": 454 }