Galler v. Galler

JUSTICE KILEY delivered the opinion of the court. Defendants seek to appeal from an order sustaining plaintiff’s objections to questions during her deposition on oral examination by defendants. Plaintiff filed a motion to dismiss the appeal. Plaintiff filed suit January 20, 1959, for specific performance of a contract regarding the operation and management of the Galler Drug Co. On April 16,1959, before the joining of issue, defendants took plaintiff’s deposition, on oral examination, for discovery purposes under Supreme Court Rule 19, ch. 110, sec. 101.19, Ill. Rev. Stat. (1959). Plaintiff objected to questions that were asked, and subsequent to adjournment of the deposition, defendants made their motion under subsection (3) (d) of Supreme Court Rule 19 — 9 for a ruling “in advance of trial” on plaintiff’s objections. The court’s order sustained the objections and defendants filed notice of appeal from the order. The question is whether the order is appealable. In accordance with the powers granted in section 58 of the Civil Practice Act, ch. 110, Ill. Rev. Stat. (1959), as amended effective January 1, 1956, the Supreme Court adopted, among other rules dealing with depositions, Rule 19 — 9. Defendants’ motion in the trial court relied upon subsection (3) (d) of that Rule which provides, in part, that “any party may, but need not, on notice and motion obtain a ruling by the court on the objections in advance of the trial.” Defendants rely upon Lorsbach v. Hartford Fire Ins. Co., 315 Ill. App. 32 (1942), to sustain tbe appeal. That case decided that a court order was appealable wbicb dismissed a notary public’s petition for an order directing witnesses to answer certain questions wbicb they bad refused to answer on tbe taking of their depositions. Tbe petition by tbe notary was tbe procedure then provided by section 36 of tbe Evidence and Depositions Act, ch. 51, Ill. Rev. Stat. (1941). Tbe court in the Lorsbacb case said tbe procedure under section 36, chapter 51, was a “separate, ancillary action to tbe main cause” and tbe dismissal ruling was not a “preliminary order in tbe pending suit but ... a final determination. . . .” We think defendants’ motion here, under Bule 19 — 9(3)(d), was a proceeding different from that in tbe Lorsbacb case, and was not a separate proceeding but a preliminary proceeding in tbe course of a pending action. It is our view that tbe Lorsbacb case is not applicable to tbe instant order wbicb we think is interlocutory and not appealable under section 77 of tbe Civil Practice Act. We are entitled, since defendants are attempting to establish a right, to consider tbe probable consequences to Appellate Court dockets of allowing appeals from orders denying motions like tbe one before us. Bush v. Babb, 23 Ill.App.2d 285, 291. Allowance of these appeals would be to promote piecemealing to a high degree and a step backward in tbe quest of tbe Illinois Legislature and courts for more modern, efficient procedures. Tbe consequences feared by defendants from disallowing tbe appeal are answered effectively in Illinois Trust & Savings Bank v. Howard, 185 Ill. 332, 333-34. Tbe trial court’s ruling was on the motion based on Rule 19 — 9(3)(d). We have limited onr consideration to that rule. The order is not appealable. The appeal is dismissed. Appeal dismissed. MURPHY, P. J., concurs. BURMAN, J., not participating.