dissenting:
After examining additional authority presented and hearing oral arguments, I am now convinced that we were in error in dismissing plaintiff’s appeal from the summary judgment of May 18, 1982, on the basis that the April 13, 1984, post-judgment motion was untimely. I now dissent from the decision to deny rehearing. I would grant rehearing and consider the merits of that appeal.
When the March 14, 1984, judgment disposing of all of the remaining claims in the case was entered, plaintiff, for the first time, had a right to appeal the summary judgment of May 18, 1982. That right was still in existence when the April 13, 1984, motion seeking to set aside the summary judgment was filed. The purpose of a post-judgment motion is to give the trial court an opportunity, before appeal, to correct any errors that might exist in its previous orders as viewed in the light of the then situation. (See People ex rel. Gustafson v. City of Calumet City (1968), 101 Ill. App. 2d 8, 241 N.E.2d 512.) Rather than filing a notice of appeal, plaintiff filed such a motion giving that opportunity to the trial court.
A rule that a trial court retains jurisdiction of a case until 30 days after entry of an order appealable because of its finality is widely believed to exist. None of the able counsel in this case raised any question of the timeliness of the April 13, 1984, motion before we raised the issue sua sponte. They must have concluded that the trial court had jurisdiction to entertain such a motion if filed within 30 days of the appealable final judgment. I now conclude that their analysis was correct.
Prior to the adoption of section 50(2) of an amended Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 50(2)), judgments, such as the summary judgment in issue here, which were final as to some but not all of the claims or parties in a case, were appealable as a matter of right. (See Ill. Ann. Stat., ch. 110A, par. 304, Historical & Practice Notes, at 586-87 (Smith-Hurd 1968).) Section 50(2) was in much the same form as present Supreme Court Rule 304(a) and required a finding similar to that of Rule 304(a) in order for final judgment to be appealable unless it was final as to all claims and all parties.
Section 2 — 1301(e) of the Code of Civil Procedure is an extension of section 50(7) of the Civil Practice Act as it existed prior to the enactment of section 50(2) of the amended Civil Practice Act. Section 50(7) then stated:
“The court may in its discretion before final judgment, set aside any default, and may within SO days after entry thereof set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable.” (Emphasis added.) (Ill. Rev. Stat. 1953, ch. 110, par. 174(7).)
Prior to the enactment of section 50(2) of the Civil Practice Act, section 68(1) of the then Civil Practice Act (Ill. Rev. Stat. 1953, ch. 110, par. 192(1)) contained a provision somewhat similar to section 2 — 1202 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1202) permitting a party to a jury trial to seek a new trial not later than a prescribed time after entry of judgment on the verdict with the pendency of the motion staying the time for filing notice of appeal.
Thus, the historical background of the provisions of the Code of Civil Procedure concerning post-judgment motions is that they were enacted at a time when most final judgments in civil cases were appealable. Accordingly, the time within which a post-judgment motion could be filed was usually measured from the filing of an appealable order. The operation of these provisions was to permit the losing party to give the court an opportunity to correct any error just before appeal would be taken. There was little need to consider when a post-judgment motion directed against an unappealable final judgment might be filed. Some consideration of that problem was later provided by section 50(2), which contained the same language as that of Rule 304(a), which states that when a judgment final as to some but not all parties and claims is not supplemented by a finding making it appeal-able, the power of the court to “review” the judgment continues while other issues remain before the court.
The vestige of the early legislative language as it now appears in the Code of Civil Procedure, if interpreted literally, required a motion attacking the instant unappealable summary judgment to have been filed within 30 days of its entry. The vestige of the early legislative language as it now appears in Supreme Court Rule 304(a), if taken literally, permits consideration of a motion attacking the summary judgment only if it was filed, considered, and ruled on before entry of the March 14, 1984, judgment disposing of the remaining claims in the case.
No decision of a court of review has interpreted the interaction of the legislation and Supreme Court Rule as does the majority. The case of Wool v. La Salle National Bank (1980), 89 Ill. App. 3d 560, 411 N.E.2d 1135, cited in our original opinion, involved a motion directed against a judgment which was made appealable by a finding pursuant to Rule 304(a). The case is not directly in point. In both Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 373 N.E.2d 416, and Morton Buildings, Inc. v. Witvoet (1979), 70 Ill. App. 3d 55, 388 N.E.2d 258, the language now in the Code of Civil Procedure, which, if taken literally, would limit the filing of the post-judgment motion to a period of 30 days after the entry of the judgment, was not followed. In Morton Buildings, Inc., the language now in Rule 304(a), which speaks of the period in which the court might revise the unappealable final judgment -as including the time prior to the entry of the judgment disposing of the case, was disregarded.
In Petersen Brothers Plastics, Inc., the court held that a lapse of more than 30 days from the entry of an unappealable judgment, final as to less than all the claims in the case, did not prevent the timely filing of a motion against the judgment where other claims were pending. The provisions of Rule 304(a) were cited. The appellate court ultimately dismissed the appeal, but the holding as to the timeliness of the motion was precedent because the holding bore on one of the grounds which supported the dismissal of the appeal.
In Morton Buildings, Inc., the post-judgment motion attacking an unappealable final judgment disposing of less than all of the claims in the case was filed five months after the entry of the judgment and after, but within 30 days of, the entry of the judgment disposing of the case. A case consisting of a complaint at law and a counterclaim in equity was presented to a jury. The jury’s verdicts were for the defendant on both. The court entered an immediate judgment on the verdict on the complaint but waited for five months before rejecting the advisory verdict on the counterclaim and entering judgment on it for the plaintiff. The plaintiff’s post-trial motion attacking the judgment on the complaint was then filed shortly. The appellate court held that the motion was timely.
The Morton Buildings, Inc., court noted that the judgment on the complaint contained no Rule 304(a) finding and thus was not appealable until judgment was entered on the counterclaim. The court reasoned that it was not sensible to require filing of a post-trial motion until the judgment became appealable. No mention was made of the provision of Rule 304(a), which speaks of the trial court’s power of revision as existing “before the entry of judgment” disposing of the case. As pointed out by the majority, the court did consider the requirement of section 68.1(3) of the then Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(3)) for single post-trial motions in jury cases as “further support[ing]” its decision. (Morton Buildings, Inc. v. Witvoet (1979), 70 Ill. App. 3d 55, 58, 388 N.E.2d 258, 260.) However, the primary thrust of the decision was the logic of not requiring the post-trial motion to be filed until the judgment on the verdict became appealable.
Many problems arise when the “before the entry of judgment adjudicating all claims” language of Rule 304(a) is taken literally to mean that the entry of the judgment disposing of the case is an absolute bar to revising unappealable final judgments previously entered. Normally, restrictions upon the filing of motions are based on a time frame from a given event. Under the literal interpretation of the Rule, the party who might wish to make the motion would not know what its time limits were because a judgment disposing of the remainder of the case could be entered at any time. If Rule 304(a) is the court’s sole source of power to revise the type of judgment involved here, a trial court could enter an unappealable final judgment as to a claim, then, very soon, enter a judgment disposing of the rest of the claims in the case and thereby cut off the right of a party to file a post-judgment motion as to the first judgment.
As I have previously noted, all of the counsel in this case apparently assumed that the time for filing the instant motion extended for 30 days beyond the entry of the judgment disposing of the case as described in Rule 304(a). Under this interpretation, the judgment starting the 30-day period for filing a post-judgment motion, mentioned in the legislation providing for such motions, is an appealable final judgment and not necessarily the judgment attacked. Such a theory is consistent with the general belief that the trial court’s power to review its previous judgments extends for 30 days beyond the entry of its order finally disposing of the case. As indicated in Morton Buildings, Inc., the entry of an appealable order is a logical time to trigger the time limit for filing a post-judgment motion. Just prior to appeal is a good time for a trial court to have its last opportunity to correct possible errors.
The holding in Morton Buildings, Inc., even when applied to this case, does not “defy all finality” as described by the majority. It only extends the time for disposition of a post-judgment motion beyond that under a literal interpretation of Rule 304(a) for a period of 30 days and the time necessary to rule upon the motion. I would adopt the holding of Morton Buildings, Inc., as the only viable rule and apply it to the facts of this case.
Accordingly, I would rule that the April 13, 1984, motion was timely filed and that plaintiff’s filing of notice of appeal within 30 days thereafter was timely.