The opinion
Supplemental Opinion on Denial op Petition por Rehearing
Plaintiff, in its petition for rehearing, vigorously contends that the Court misapprehended “(1) the far reaching legal effect of the holding which allows a judgment to be raised as a bar, from which judgment the party barred had no right of appeal, and (2) the facts and holdings in Sherman House Hotel Co. v. Butler St. Foundary & Iron Co., supra.”
We do not accept plaintiff’s assumption that Ind has no right of appeal from the original judgment wherein the jury returned a verdict against it in the sum of $12,665, and a not guilty verdict as to the City and Wood. In the case of Greenman v. Harvey, 53 Ill 386, 390 (1870) the Court stated:
“But it is urged, that as the minor does not appeal, and as there are no errors committed against appellants, they cannot assign errors committed against the minor. One defendant, as a general rule, cannot assign errors committed against a co-defendant, but the rule is subject to the limitation, that it is only in cases where the rights of appellant are not affected by the error. In this case, appellants are the purchasers, and the minor and her co-tenant in common, hold the legal title, and the property is subject to dower. It is, therefore, a matter of importance to appellants that the question of dower be definitely settled before they complete their purchase and receive their deed. . . . It is only where we can see that the interests of a plaintiff in error are not, or can not be affected by errors committed against a co-defendant, that he will not be permitted to rely upon them for a reversal.”
This subject received further consideration in People v. Estate of Harrigan, 294 Ill 171, at pages 173 and 174, 128 NE 334 , the Court stated:
“The order of the circuit court dismissing the appeal amounted to an affirmation of the order of the probate court awarding the claim of the county. According to the allegations in their assignment of errors, plaintiffs in error are entitled, as legatees under the will of their deceased brother, to all of his property that remains after the payment of his debts. If any unjust or illegal claims are allowed against the estate of Michael Harrigan plaintiffs in error would be damaged to that extent. They would be benefited by a reversal of the judgment of the circuit court, and they are therefore entitled to sue out this writ of error to review that judgment.”
Also see White Brass Castings Co. v. Union Metal Mfg. Co., 232 Ill 165, 167, 83 NE 540 (1908); Sullivan v. Harris Trust & Savings Bank, 8 Ill App2d 397, 407, 132 NE2d 69 (1st Dist. 1956); Krause v. White, 341 Ill App 322, 332, 93 NE2d 429 (2d Dist. 1950).
In Corn v. Greenberg, 181 Ill App 669 (1st Dist. 1913), the court in discussing this subject, with respect to the similar predecessor section of the Practice Act governing appeals, stated at page 671:
“So far as we are aware, it has never been denied that section 91 gives to all the parties to the suit, whose interests have been prejudicially affected by a final judgment, order or decree the right to appeal.”
Appeals are statutory in nature and are limited to those authorized, but where doubt exists as to the right of appeal, such question should be resolved in favor of the appellant. 4 CJS (Appeal & Error) par 167, page 539.
Section 74 of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 74) prescribes the method of review in Illinois. Subject to special types of statutory review, subsection (1) makes the notice of appeal applicable to civil proceedings. The changes in subsections (1) and (2) are of form only, and otherwise the appellate procedure under predecessor statutes remains unchanged. Subsection 3 is new, and substitutes notice of appeal for writ of error as the method to obtain review by the Supreme Court of any judgment of the Appellate Court, in any civil case in which a constitutional question arises for the first time as a result of action of the Appellate Court, and upon certification by a division of the Appellate Court that a case decided by it involves such importance that it should be decided by the Supreme Court. (Constitution of Illinois 1870, art 6, sec 5.) Thus, the prior decisions, relating to persons formerly authorized to sue out a writ of error, are applicable to persons now filing notice of appeal.
Section 81 of the Civil Practice Act also provides that notice of appeal shall replace the old writ of error procedure in all cases where a judgment is rendered against two or more persons, and states that one or more of said persons may appeal and use the name of all parties to the proceeding. Section 50(2) provides for appeal in cases involving multiple parties or multiple claims, where the Court enters an order final as to one, hut fewer than all, of such parties or claims. Sections 101.22 and 101.35 provide for the form and content of Notice of Appeal, and for Notice of Appearance, Cross Appeal and Separate Appeal by a Co-Party. Thus, Illinois practice and procedure, as well as substantive law, contemplates broad appeal rights in persons qualified to appeal.
In order to entitle a person to file notice of appeal to review a judgment, order or decree, the appellant must be a party or privy to the record, or one who is injured by the judgment, or who will be benefited by its reversal, or who is competent to release errors. People v. Whealan, 353 Ill 500, 503, 187 NE 491 (1926); Leland v. Leland, 319 Ill 426, 428, 429, 150 NE 270 (1926); People v. Estate of Harrigan, 294 Ill 171, 173, 174, 128 NE 334 (1920); People v. Lower, 254 Ill 306, 314, 98 NE 557 (1912); Griggsville State Bank v. Newman, 275 Ill App 11, 14 (3d Dist. 1934), Mosier v. Flanner-Miller Lumber Co., 66 Ill App 630, 634 (1st Dist. 1896).
In the light of the foregoing authorities, we believe that Ind had a right to appeal not only from the judgment against it, but also from the judgment in favor of Wood, since he would be injured in his claim for contribution against Wood by virtue of said judgment.
The only pertinent authority cited by Ind to sustain his first contention is Bakula v. Schwab, 167 Wis 546, 168 NW 378 (1918), and it was there held that “an element essential to constitute res adjudicata is the right of appeal from a judgment,” and that such right was denied to appellant under the circumstances of the case. However, Bakula was modified in Wait v. Pierce, 191 Wis 202, 210 NW 822 (1926), and at page 825 the Court stated: “So far as the Bakula case holds that, where one joint tort-feasor discharges more than his equitable share of a liability resting upon him and another joint tort-feasor by a single judgment, the question of liability of the other joint tort-feasor to the plaintiff is not res judicata, it must, be and is, modified.” Bakula was further repudiated in Schofield v. Rideout, 233 Wis 550, 290 NW 155 (1940). At page 157, the Court in referring to the holding in Bakula that an element essential to constitute res judicata is the right to appeal from the judgment, stated: “No authorities to the point stated are cited in the Bakula case, supra, nor do defendants cite any nor do we find any. But the contention of defendants need not rest on such a rule, and we do not hold that such is the rule.”
Ind further urges that there is no sound distinction between the case at bar and Sherman House Hotel Co. v. Butler St. Foundry & Iron Co., supra. We disagree. In the action over, the Iron Co. urged the prior judgment wherein it was found not guilty of negligence, as res judicata. At pages 553 and 554, the Court analyzed and distinguished Kansas City v. Mitchener, 85 Mo App 36 in which the Court held that the judgment in the former suit was res judicata, from the Sherman House case, in these words:
“It appears from the opinion of the court that, when the former suit against Mitchener and the city, jointly, was on trial, ‘the city by course of conduct at the trial endeavored to show that Mitchener was liable and he endeavored to show that he was not, while Mrs. Byan endeavored to show that both of them were.’ In other words, in the former trial in the Mitchener case, the court, presumably because of the state of the pleadings and the code practice obtaining in Missouri, allowed the question as to which of the defendants— the city or Mitchener—as between themselves, were liable to Mrs. Byan, or whether both were liable, to be litigated, and it found tbat tbe city alone was liable. In the former trial of tbis Gallagher case no such questions were in issue under tbe pleadings. Tbe declaration in tbat case charged tbat both tbe hotel company and tbe iron company were liable to Gallagher, and it appears tbat on tbe trial of tbat case tbe iron company, at the conclusion of plaintiff’s evidence, moved the trial court to take tbe case from tbe jury as to it, but tbat tbe court reserved its ruling thereon until tbe hotel company bad put in its defense, and tbat when this bad been done, and tbe hotel company bad rested its case, tbe court sustained said motion of tbe iron company—tbe iron company having introduced no evidence,— and directed tbe jury to find tbe iron company not guilty. It, therefore, clearly appears tbat tbe question as to which one of tbe two defendants— tbe iron company or tbe hotel company—was liable for tbe injury, as between themselves, was not determined. Tbe determination solely was tbat tbe hotel company was liable to Gallagher.”
In tbe case at bar, as stated in tbe foregoing opinion, tbe plaintiffs in tbe original suit earnestly sought to impose liability on tbe defendants, Ind, Wood and tbe City. Ind, in conducting its defense, actively sought to establish tbe negligence of Wood and its freedom from negligence. Thus, in tbe original Sherman House case, tbe question of which of two defendants, as between themselves, was liable for tbe injury, was not determined; tbis question was determined by tbe testimony, and otherwise in tbe original Ind suit. This is tbe distinction between tbe case at bar and tbe Sherman House case: it is real.
In addition, section 25 of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 25) now gives Illinois a modern third-party practice similar to that prevailing in other jurisdictions, and under the Federal Rules. Its purpose is to curtail multiplicity of actions hy providing for the assertion in one action of any claim, which, by reason of plaintiff’s claim against one party defendant, such defendant has, or may have, against a third party. To further facilitate the determination of all claims arising out of the same transaction or occurrence, in one action, this section permits the third-party defendant to file a counter-claim or third-party complaint. The last sentence of subsection (2) states that the law of contribution is not changed by such procedural innovations. By use of such procedure, the entire controversy may be determined in one proceeding with its attendant savings in court time, attorney’s fees and legal costs.
To facilitate the trial lawsuits where there is a joinder of causes of action and the use of counterclaims, section 44 of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 44) vests discretion in the trial court to order separate trial of any causes of action, counterclaim or third-party claim, if it cannot be conveniently disposed of with the other issues of the ease. The proper use of such procedures, would preclude questions of the type being here litigated.
For these reasons, we adhere to the opinion herein as originally adopted. "We believe it to be sound. It will neither violate the well reasoned and established law of this State, nor leave in its wake the injustices which Ind suggests.
Petition for rehearing denied.
ABRAHAMSON, P. J. and MORAN, J., concur.