dissenting:
The opinion of the majority decides an important question of practice. According to my view the conclusion reached therein as to the finality of the judgment under review leaves the law in a state of inexplicable confusion, so that it will be extremely difficult for the profession to determine what the proper practice is. I desire to respectfully dissent from the views of the majority and to briefly state my reasons therefor.
The situation presented by this record upon which the legal question arises is as follows: Appellee brought an action of assumpsit against appellant on an insurance policy. The appellant company was served with process and appeared and filed pleas. Afterwards the appellant’s pleas were stricken from- the files because they were not verified by affidavits. After the pleas were stricken a default was entered against appellant, a jury empaneled, appellee’s damages assessed, and judgment was entered upon this assessment for $5345.13. The judgment was entered on the last day of a term of court which seems to have ended January'14, 1911, which was the date of the judgment. Appellant appeared during the next succeeding term of the court and filed its motjon to set aside the default and vacate the judgment. The motion was supported by an affidavit setting up numerous facts tending to show that appellant had a defense on the merits to the cause of action, and that the judgment by default had been entered without any actual knowledge on the part of appellant’s attorneys and in violation of the rules of the court. Upon a hearing of this motion the court set aside the default, vacated the judgment and gave appellant leave to plead its defense. Appellee prosecuted an appeal to the Appellate Court from the order of the circuit court setting aside the default and vacating the judgment. The Appellate Court reversed the order of the circuit court and granted a certificate of importance, and the case was brought to this court by the appeal of the defendant in the court below and appellee in the Appellate Court.
The question of practice in the Appellate and in this court is, was the order of the circuit court setting aside the default and vacating the judgment a final, appealable order within the meaning of the statute, which only allows appeals and writs of error to be prosecuted from final judgments and decrees ? This question is answered by the majority opinion in the affirmative. In my opinion it should be answered in the negative.
Judgments are either interlocutory or final. An interlocutory judgment is one which determines some preliminary or subordinate point or plea, or settles some step, question or default arising in the progress of the cause but does not adjudicate the ultimate rights of the parties or finally put the case out of court. Any order or judgment which does not settle and conclude the rights involved in the action and does not deny to the party the means of further prosecuting or defending the suit is not so far final as to be a proper subject of appeal. (Black on Judgments, sec. 21, and authorities there cited.) A final judgment is such a judgment as at once ends the action by declaring either that the plaintiff has or has not othe right to the remedy for which he sues. (3 Blackstone’s Com. 398.) It is not necessary to the finality of a judgment that it should be the result of a full hearing upon the merits. A judgment of non-suit or dismissal, or upon a demurrer to a pleading, may be final although it does not reach the stage where the merits are inquired into. It is the termination of the particular action which marks the finality of the judgment. (Black on Judgments, supra.)
Walker v. Oliver, 63 Ill. 199, is referred to in the majority opinion and an unsuccessful effort made to distinguish it from the case at bar. In that case judgment was obtained against Oliver by default and a jury was sworn to assess the damages, who returned a verdict against the defendant for $5500, upon which judgment was entered. At a subsequent term of the court, upon the motion of Oliver, the judgment was set aside and a writ of error was sued out from this court from the order setting aside the judgment. This court, speaking by Mr. Justice Breese, on page 200 said: “It is quite evident the plaintiff in error is premature in suing out this writ of error, for the reason the record shows no final judgment from which an appeal or writ of error would lie. All that the circuit court did was to set aside a judgment previously rendered in that court, which decides nothing. When the cause is again tried and a final judgment entered an appeal or writ of error will lie, on which'it can be assigned as error setting aside this judgment at a term subsequent to the one at which it was rendered. That is the case of Cook v. Wood, 24 Ill. 295. For the reasons given the writ of error must be dismissed.”
I have quoted the entire opinion of this court in the Walker-Oliver case. The writer of the majority opinion has examined the original record in the Walker-Oliver case and discovered that the judgment was apparently set aside in the court below because there was no jurisdiction of defendant in error, Oliver, and this is said to be an error of law apparent on the face of the record. ' The error arose from the circumstance that the trial court overlooked or misapprehended the fact that no summons had been issued to Livingston county and served upon Oliver. The record in the Walker-Oliver case presented a typical instance for a resort to the common law writ of coram nobis had the practice under that writ been in use at that time. Whatever view may be taken now of the grounds for setting aside the judgment in the Walker-Oliver case and the bearing such circumstance may have upon the finality of the judgment of the court, it is certain that this court did not rest its judgment upon any such distinction as is now sought to be drawn. This court held that the judgment was not final, for the reason that setting aside the default and permitting the party to come in and present his defense decided nothing. If the Walker-Oliver case states the law, it seems to me, with all due respect to my associates, that the majority opinion in this case cannot be right. I fail to see any rational ground upon which the two cases can be distinguished. We should not be misled by cases where bills in equity or petitions to set aside a judgment and grant a new trial are under consideration. The final decree vacating and setting aside a judgment at law for fraud, accident or mistake is final and appealable. This distinction is well recognized by the authorities, but there is no suit here to vacate á former judgment. There is simply a motion to set, aside a default and vacate the judgment to allow the defendant to have a hearing upon the merits. This order suspended the final judgment until after a subsequent atrial should be had. Until final judgment is rendered all interlocutory orders are before the court and may be corrected at any time. (Brush v. Seguin, 24 Ill. 254; Fort Dearborn Lodge v. Klein, 115 id. 177; Setzke v. Setzke, 121 id. 30.) The question whether the order vacating a judgment is a final and appealable order does not depend upon whether the court erred in setting aside the judgment, even though that error is so serious as to amount to an utter want of jurisdiction. In the Walker-Oliver case it might well have been said that the court, after the term had expired at which judgment was rendered, had no power or authority to set aside the judgment, but, at most, could only amend it in matters of form. This court held, as far back as Cook v. Wood, 24 Ill. 295, that after a term had expired the court had no authority at a subsequent term to set aside its judgment, and this decision has been approved by numerous subsequent decisions. Fix v. Quinn, 75 Ill. 232; Coursen v. Hixon, 78 id. 339; Tosetti Brewing Co. v. Koehler, 200 id. 369; Ford v. First Nat. Bank, 201 id. 120; Barnes v. Henshaw, 226 id. 603.
The invalidity of the order vacating the judgment has nothing to do with its finality and appealable character. On this point the case of People v. Wells, 255 Ill. 450, is instructive. That was an original mandamus proceeding in this court against a judge of the municipal court of Chicago to compel him to vacate and expunge from the records of his court two orders entered by him, one on December 18, 1911, setting aside, conditionally, a verdict and judgment in favor of the relator and against John F. Waters, and the other on December 27, 1911, purporting to open said judgment and permit Waters to defend against the action. It was held that the orders in question were entered more than thirty days after the judgment was rendered, and further, that the thirty days allowed by the statute during which time the judgment in the municipal court remained interlocutory and subject to revision corresponded to a term of court, and that orders entered in the municipal court after the expiration of the thirty days stood on the same basis as orders entered by a court having fixed terms, at a subsequent term. This court held that the orders were void for the reason that the court had lost jurisdiction after the expiration of the statutory period. The orders being void, this court awarded a mandamus to compel the judge to expunge them from the records of the court. One of the contentions made was that mandamus was not a proper remedy but that the proper course would have been to appeal or sue out a writ of error. That contention was answered by this court by calling attention to the statute, which provided that the existence of another remedy was no longer any reason why a mandamus might not be resorted to, and it was held, on the authority of Brokaw v. Commissioners of Highways of Bloomington Township, 130 Ill. 482, that the existence of another .satisfactory remedy was not now a bar to relief, but it was further said that the existence of another remedy may be of importance in determining whether this court will assume jurisdiction in a particular case; that the existence of another legal remedy might be a good ground upon which this court would refuse to take jurisdiction by mandamus; and in further answer to this contention this court, on page 455, said: “The last order purporting to set aside the judgment does not amount to a final judgment which could be reviewed, and it would be necessary to again try the cause, and if the relátor should be defeated on another trial he would then be required to take the case to an appellate tribunal and assign as error the setting aside of the judgment when the court had no jurisdiction to act at all,”—citing Walker v. Oliver, supra. Here we have a late decision of this court holding, first, that the judgment or order of the court vacating a judgment was wholly void for the want of jurisdiction to act at all, and in the same opinion the doctrine of Walker v. Oliver is re-affirmed, and it is held that such judgment is not final and appealable, and that the only course left open to the party whose judgment has been vacated is to preserve an exception to the action of the court in vacating the judgment, re-try the case, and if defeated upon the re-trial then assign error in an appellate tribunal upon the action of the court in vacating and setting aside his former judgment. If the decision in People v. Wells is good law then the majority opinion is not sound.
The case of City of Park Ridge v. Murphy, 258 Ill. 365, is in line with Walker v. Oliver and other cases, and it is there held that a judgment vacating a judgment for the want of jurisdiction is not a final and appealable judgment.
The proper practice, as I understand the law, was followed in Domitski v. American Linseed Co. 221 Ill. 161, which is one of the cases relied upon in the majority opinion. There a default had been'entered and damages assessed as in the case at bar and judgment entered upon the verdict. At the next term of court the defendant filed a written motion to set aside and vacate the judgment entered at the previous term and to set aside the default, and assigned reasons for granting the same. ' Numerous affidavits were filed and a hearing was had at the March term upon the motion. The plaintiff objected to the court entertaining the motion, on the ground that the term at which the default and judgment were entered had ended and the court for that reason had no jurisdiction to entertain the motion, but the objection was overruled. The court, upon final hearing of the motion, which in the meantime had been amended, sustained the same and set aside the default, and judgment was entered at the February term because of an alleged error in fact in entering the judgment. The order was upon the condition that the defendant plead instanter and consent to an immediate trial of the case. The plaintiff excepted to the order so entered and took leave to file a bill of exceptions within thirty days. Thereupon the defendant filed pleas to the declaration, and when the cause was called for trial it was dismissed because the plaintiff failed to prosecute and judgment was entered against the plaintiff for costs. The plaintiff thereupon, after final judgment against him, sued out a writ of error from the Appellate Court and that court affirmed the order of the superior court, and then a writ of error was sued out of this court to bring up the judgment of the Appellate Court for review. The judgment in that case was clearly final. The Appellate Court found, from the affidavits filed in support of the motion to vacate, that there had been an error in fact committed in the rendition of the judgment, and its judgment was affirmed by this court.
The majority opinion, relying on a discussion in Mitchell v. King, 187 Ill. 452, and repeated to some extent in Domitski v. American Linseed Co. supra, seeks support in analogies drawn between the practice under the common law writ of coram nobis and the motion to vacate and set aside a judgment under section 89 of our Practice act. I do not think that any arguments can be discovered by an excursion into the ancient history of the now obsolete writ of error cOram nobis to support the majority opinion. The cases referred to are only useful as throwing light upon the question in respect to what may and may not be corrected by the use of that writ. If any argument can be drawn from this source it should be confined to the point in issue,—that is, as to the finality of the judgment. As I understand from an examination of the common law practice under this writ, it was as follows: The party aggrieved by the judgment sought to be reversed, set aside or modified, appeared in court and submitted a motion or a petition supported by affidavit, of which notice must have been given to the opposite party unless he voluntarily waived it by appearing. The first question presented is preliminary, and the court decides, in its discretion, whether it will award the writ. This writ was never regarded as a writ of right but one only to be allowed in the discretion of the court. (Birch v. Triste, 8 East, 414; Smith v. Kingsley, 19 Wend. 620; Crawford v. Williams, 1 Swan, 341.) The plaintiff, or petitioner, makes his assignment of error, and the court thereupon either awards or refuses the writ. If the writ is awarded the judgment to be reviewed is then brought into consideration, and the court hears the matter and enters a final judgment either affirming the original judgment, reversing it or modifying it, according to the justice of the case. The granting of an application or petition for a writ of error coram nobis is not a final judgment, and cannot be reviewed upon writ of error or appeal by an appellate tribunal. (Tyler v. Morris, 4 Dev. & Batt. L. 487; 34 Am. Dec. 395; Wood v. Colwell, 34 Pa. St. 92.) But a writ of error lies from the final judgment of the court reversing, upon error coram nobis, a former judgment and rendering judgment for costs in favor of the party suing out the writ. (Hawkins v. Bowie, 9 Gill & J. 428.) Tested by the common law practice applicable to the writ of error coram nobis, the granting of a motion to vacate a judgment under our statute seems to be equivalent to the ancient practice of awarding a writ of error coram nobis, and the final judgment to be entered upon a re-trial of the case corresponds to the final judgment entered after a full hearing upon the writ of error coram nobis. In both cases the first or preliminary order is not final and appeal-able if allowed, and under both practices the final judgment entered is appealable. The net result is that appellant will be compelled to pay a large judgment without having had any opportunity to make a defense which the trial court evidently thought was meritorious. A practice under which such a thing is possible ought not to be tolerated.
In my opinion the Appellate Court erred in not dismissing the appeal, for which I think its judgment should be reversed and the cause remanded to the trial court, with directions to proceed to a trial of the case, allowing the plaintiff below her bill of exceptions upon the ruling of the court in setting aside the judgment.