dissenting: The record in this case does not disclose a final appealable judgment and for that reason the proper order to be entered herein is one dismissing the appeal.
The majority opinion states that “appellant had the right to appeal from the final order of the court denying the motion to vacate the striking of plaintiff’s complaint and entering judgment against defendant for want of answer. ’ ’ This is not a correct statement of what the record discloses occurred. The plaintiff’s motion was to vacate the order striking the complaint and for judgment by default for failing to answer. The court denied the motion to vacate and also denied the motion for judgment, but no judgment was ever entered against the plaintiff or for the defendant. The further statement in the opinion to the effect that “this court has elected to consider this appeal on the issues raised therein- rather than dismiss the appeal” does not give this court jurisdiction to review an order which is not final. The right of appeal is purely and strictly statutory. Durkin v. Hey, 376 Ill. 292. The statute provides for appeals only from final orders, judgments or decrees. (Ill. Rev. Stat. ch. 110, par. 201 [Jones Ill. Stats. Ann. 104.077].) Other orders, judgments and decrees are not appealable (People v. Mitchell, 325 Ill. 472) and unless the order appealed from is a final one, this court in a case of.this character is without jurisdiction to consider the merits of the controversy.
What the record does show is that after an amended answer and ah amendment to the amended answer and a demand for a jury trial had been filed an order was entered, on motion of the defendants, withdrawing the pleadings of the defendants and withdrawing their demand for a jury trial and by leave of court a motion was filed by them to strike the plaintiff’s complaint. On January 15, 1945, this motion was heard and sustained. On January 22, 1945 a motion to vacate the order of January 15,1945 was denied and on the same day a motion of the plaintiff for judgment was also denied.
On February 20, 1945 notice of appeal was filed in the circuit clerk’s office but the abstract does not disclose from what order or orders the defendants have prosecuted their appeal. The record does not disclose the rendition of any judgment. All the trial court did, so far as shown by the record, was to enter an order sustaining defendant’s motion to dismiss and denied a motion to vacate that order. With the record in this condition the only order this court has jurisdiction to enter is one dismissing the appeal. Where a motion to dismiss a complaint is sustained, it must be followed by a judgment for the defendant to the effect that the plaintiff take nothing by virtue of his action and that the defendant go hence without day or words of similar import' or meaning. Board of Education v. Board of Education, 301 Ill. App. 228.
In the majority opinion, it is said: “The court in this case determined that it lacked jurisdiction and ended the proceeding for lack of jurisdiction. Such order was the final determination of the cause. It was a substantial determination that plaintiff had no cause of action on the bond. It seems quite apparent that it was the intention of the court in this case to terminate the suit on the bond because it thought it lacked jurisdiction and intended that its order to that effect was an order of final disposition of the case.” It is the context of the order itself and not the determination or intention of the court, that determines the character of an order. It is well settled that it is the judgment or order, and not the reason on which the judge bases it, that controls, and if a judgment or order is correct in result, the reason given by the court for it is immaterial, and the judgment will not be reversed because the court gave the wrong or an insufficient reason for its rendition. The reason which the court gave in this case when it sustained appellee’s motion to dismiss was erroneous, but that reason plays no part in determining the character of the order entered.
If' the trial court, instead of striking the complaint for the reason that it thought it had no jurisdiction, had gone further and entered an order dismissing the suit, either for supposed want of jurisdiction or for any other reason, such an order, whether right or wrong, would have been a final appealable order, but an order merely striking the complaint did not ‘ end the proceeding.” An order sustaining a motion to° strike a complaint, or an amended complaint, standing alone does not end the proceeding and is not a final appealable order. (Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106; Barber v. Wood, 318 Ill. 415; Trebbin v. Thoeresz, 316 Ill. 30; Moroni v. Albers, 301 Ill. App. 633.) It is essential to finality that the case be disposed of, not merely by. striking the complaint, but by an order or judgment that finally disposes of the case. Where an appeal is taken prematurely before entry of final judgment a court of review, must, on its own motion, dismiss the appeal even though no question of jurisdiction is raised by the parties, since in the absence of a final, appealable order, the parties cannot confer jurisdiction upon the court by consent. (Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 573; Reynolds v. Wangelin, 314. Ill. App. 12.) Williams v. Huey, 263 Ill. 275 and the other cases cited in the majority opinion do not sustain the holding of the majority opinion, but support the conclusion that this order is not a final, appealable one.
In the instant case the bond upon which this suit is based provided: “Now, if the said Chris Klabunde shall prosecute his appeal with effect, and pay whatever judgment shall be rendered against him by said court upon the trial of said appeal, or by consent or in case the appeal is dismissed, or in case the matter in controversy is settled between the parties to the action without a trial by the court appealed to, will pay the judgment rendered against him by the said Justice John E. White and all costs occasioned by said appeal, then the above obligations to be void, otherwise to remain in full force and effect.” This bond does not follow the provisions of the statute and is therefore not a statutory certiorari bond. Preceding the issuance of a statutory writ of certiorari there must be a statutory bond. Ill. Rev. Stat. ch. 79, par. 189 [Jones Ill. Stats. Ann. 71.174]. There may be, and probably is, a liability on the bond in this case upon a proper complaint being filed, if the allegations thereof are sustained by the proof, but whether there is or not should not be determined by this court upon this record. This case is still pending in the trial court and the appeal should be, by this court, dismissed.