Henson v. Renshaw

JUSTICE HOFFMAN delivered the opinion of the court. Plaintiff Henson brought an action to recover certain monies from the defendants for the use and benefit of the United Mine Worker’s Welfare and Retirement Fund. Both defendants counterclaimed against plaintiff for unpaid back wages. Tbe case went to trial, and the jury rendered verdicts in favor of plaintiff on bis complaint and in favor of each defendant on bis counterclaim. Judgments were entered on tbe verdicts. Thereafter, tbe defendants filed tbeir post-trial motions praying for judgment notwithstanding tbe verdict, and tbe plaintiff filed bis motion praying for judgment notwithstanding tbe verdict or, in tbe alternative, for a new trial. Tbe court, upon bearing these several motions, entered tbe following written order: “This cause coming on to be beard on tbe several post-trial motions filed by both plaintiff and defendants herein be, and it is hereby ordered that all post trial motions be, and hereby are, overruled except tbe motion of tbe plaintiff for a new trial which is granted herein.” Tbe defendants have taken this appeal to reverse tbe order denying tbeir motion for judgment notwithstanding. No petition for leave to appeal from tbe order granting plaintiff’s motion for a new trial has been filed, and tbe defendants state, in tbeir reply brief, that that ruling “is not now before this court.” This action involves multiple parties and multiple claims for relief and, consequently, is governed by Section 50(2) of the Civil Practice Act, [Ill Rev Stats 1959, c 110, § 50, subd 2]. Bohannon v. Joseph T. Ryerson and Sons, Inc., 15 Ill.2d 470,155 N.E.2d 585. That section provides that in such case, “. . . tbe court may enter a final order, judgment or decree as to one or more but fewer than all of tbe parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In tbe absence of that finding, any order, judgment or decree which adjudicates fewer than all tbe claims or tbe rights and liabilities of fewer than all tbe parties does not terminate tbe action, is not enforceable or appealable, and is subject to revision at any time before tbe entry of an order, judgment or decree adjudicating all tbe claims, rights and liabilities of all tbe parties.” Ill. Rev. Stat., 1959, Chap. 110, par. 50(2). The record is clear that the trial court was not requested to make, and did not make, any finding that there was no just reason for delaying tbe enforcement or appeal of tbe order denying defendants’ motions for judgment notwithstanding. Tbe order granting plaintiff’s motion for a new trial leaves an unresolved issue remaining in tbe trial court. Thus, there resulted, in tbe trial court, a final determination of fewer than all tbe rights and liabilities at issue and tbe mandate of Sec. 50(2) applies. Ariola v. Nigro, 13 Ill.2d 200, 207, 148 N.E.2d 787; Peterson v. Gwin, 17 Ill.2d 261, 161 N.E.2d 123. "We therefore must dismiss this appeal for want of an appealable order. Appeal dismissed. SCHEINEMAN, P. J. and CULBERTSON, J., concur.