{ "id": 5313961, "name": "Gerald E. Duncan et al., Plaintiffs-Appellees, vs. Carole Dawn Irwin et al., Defendants-Appellants", "name_abbreviation": "Duncan v. Irwin", "decision_date": "1971-08-06", "docket_number": "No. 70-12", "first_page": "3", "last_page": "5", "citations": [ { "type": "official", "cite": "1 Ill. App. 3d 3" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "159 N.E.2d 833", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill.App.2d 179", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5201250 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/22/0179-01" ] }, { "cite": "190 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "41 Ill.App.2d 37", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2452801 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0037-01" ] }, { "cite": "150 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.App.2d 408", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5182193 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/17/0408-01" ] }, { "cite": "208 N.E.2d 878", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill.App.2d 163", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5300342 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/61/0163-01" ] }, { "cite": "243 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "103 Ill.App.2d 445", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599811 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0445-01" ] } ], "analysis": { "cardinality": 410, "char_count": 6800, "ocr_confidence": 0.745, "pagerank": { "raw": 9.141210829279633e-08, "percentile": 0.5078074049877039 }, "sha256": "be7bcdbe0d543042a52373fd6fec14b6a8fb7709ecd65077c57e156d49437e95", "simhash": "1:1fee91ab71feb5f5", "word_count": 1174 }, "last_updated": "2023-07-14T15:27:55.359601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gerald E. Duncan et al., Plaintiffs-Appellees, vs. Carole Dawn Irwin et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nAppeal from an Order by the trial court which stated:\n\u201cPetition to Revoke Adoption Consent and Custody of Child called for hearing. Evidence heard and petitioner rests her case.\nThe Comt, after being fully advised, finds the issues raised by the Petition to Revoke Adoption Consent and Custody of Child in favor of the plaintiff and against the defendant, and finds there is no credible evidence to prove any allegations of fraud or duress being used on the petitioner, Carole Dawn Irwin. As to the allegations of payments made or promised to the petitioner, the Court finds the same, if made, by her own testimony in no way affected her decision to sign the consent. Petition to Revoke Adoption Consent and Custody of Child is denied at petitioner\u2019s costs.\u201d\nGerald E. Duncan and Ruby Duncan, the plaintiffs in this cause, filed their Petition for Adoption on September 25, 1969, wherein they prayed that the defendant, the natural mother, \u201cbe made defendant\u201d to the petition and further, that the court \u201cOn final hearing of this petition, ORDER, ADVISE and DECREE that * * * [the child] to all legal intents and purposes, be the child of your petitioner * *\nOn the same day as the plaintiffs filed their petition there was also filed a \u201cConsent to Adoption of a Minor Child\u201d signed by Carole D. Irwin, the defendant herein.\nDefendant was served with summons. The return, filed on October 7, 1969, indicated that the summons was served upon the defendant on September 26, 1969.\nThe defendant, on October 8, 1969, filed a \u201cPetition to Revoke Adoption Consent and for Return of Custody of Child\u201d. The Court heard the petition to revoke on October 23, 1969, and took the matter under advisement until the following day when the Court entered the order above set forth and from which the defendant has brought this appeal.\nBefore we can go into the merits of this cause, it is necessary for us to first determine whether the trial court has entered an order from which the defendant may appeal.\nThere can be no question that all of the issues between the parties hereto have not been adjudicated. The court has not entered or refused to enter its final decree of adoption. Whether the order denying the revocation of consent is appealable is controlled by Supreme Court Rule 304 (Ill. Rev. Stat. 1969, ch. 110A, par. 304), entitled \u201cJudgments as to Fewer Than All Parties or Issues\u201d.\nFor there to he an appeal when fewer than all issues are decided, it is a prerequisite that the trial court make \u201can express written finding that there is no just reason for delaying enforcement or appeal.\u201d Although this finding can be made by the court on its own motion or on the motion of a party no such finding is part of the record of this cause.\nThe Rule provides: \u201cIn the absence of such a finding, any judgment that adjudicates fewer tiran all the claims * * * 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.\u201d\nThis Rule and the purposes for which it is intended are particularly appropriate to the present cause. The trial court must determine, after application by the plaintiffs herein and after a hearing, \u201cthat the adoption is for the welfare of the child and that there is a valid consent\u201d before a decree of adoption may be granted. (Ill. Rev. Stat., ch. 4, par. 9.1\u201414.) Thus, the issue of the consent must be finally decided by the trial court before there is an appealable order. (E. M. S. Co. v. Brandt, (1968), 103 Ill.App.2d 445, 243 N.E.2d 695; Alster v. Chicago Tastee-Freeze Corp. (1965), 61 Ill.App.2d 163, 208 N.E.2d 878), but other issues must also be decided before a decree of adoption can be entered.\nAppellants contend that under the holding in Oppenheimer Bros., Inc. v. Joyce & Co., 17 Ill.App.2d 408, 150 N.E.2d 381, if the judgment is final as to part of the case that it is not necessary that the court specifically order that there is no just reason for delaying enforcement or appeal. The First District Appellate Court there held that the trial court \u201cmust have determined that this order was final and that there was not just reason for delaying enforcement or appeal\u201d, even though the finding, as in the present case, did not appear in the order and the order did not dispose of all the parties or claims. There the court reached its conclusion because the order entered by the trial court directed the imposition of costs and master\u2019s fees on plaintiff and that execution issue therefor. As is pointed out in \u201cHistorical and Practice Notes\u201d, Ill. Anno. Stat., Ch. 110A, \u00a7 304 at page 588, \u201cNo other Appellate Court adopted the rule of the Oppenheimer case. In American Savings & Accounting Supply, Inc. v. Steinhauer, 41 Ill.App.2d 37, 190 N.E.2d 167 (1st Dist. 1963) it was indicated that Oppenheimer case will no longer be followed in the First District.\u201d\nWe do not consider other cases cited by appellant as controlling on the factual situation here present. This question of whether or not a final order is appealable has long been a troublesome one to reviewing courts in the State, as is evidenced by the numerous cases decided under the former section 50(2) of the Practice Act and under Supreme Court Rule 304 which was adopted to supplant that section, and it has been held that a Rule 304 finding does not make final and appealable a judgment which is not final or appealable absent the rule. (Veach v. Great Atlantic & Pacific Tea Co., 22 Ill.App.2d 179, 159 N.E.2d 833.) By adoption of Rule 304 it was sought to emphasize that it is not the court\u2019s finding that makes the judgment final, but it is the court\u2019s finding that makes this kind of a final judgment appealable, but it did not change the law. The Rule was amended to be effective January 1, 1970, and while the language of the 1967 Rule was not changed a paragraph (b) was added listing several kinds of judgments and orders that have been appealable without the finding by the trial court. The 1970 rule was intended to be declaratory of then existing law (See Committee Comments, ch. 110A, \u00a7 304, Ill. Anno. Stat., p. 54, 1971 Cum. Ann. Pocket Part); an order ruling on the validity of the consent in an adoption proceeding is not included in the new paragraph (b) of the Rule.\nWe therefore determine that we are without jurisdiction to determine the appeal, and dismiss the appeal.\nAppeal dismissed.\nMORAN and JONES, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE EBERSPACHER" } ], "attorneys": [ "Wiseman, Shaikiwitz, & McGivern, of Alton, for appellants.", "Hillary H. Hallett and L. James Struif, both of East Alton, for appellees." ], "corrections": "", "head_matter": "Gerald E. Duncan et al., Plaintiffs-Appellees, vs. Carole Dawn Irwin et al., Defendants-Appellants.\n(No. 70-12;\nFifth District\nAugust 6, 1971.\nWiseman, Shaikiwitz, & McGivern, of Alton, for appellants.\nHillary H. Hallett and L. James Struif, both of East Alton, for appellees." }, "file_name": "0003-01", "first_page_order": 23, "last_page_order": 25 }