dissenting:
I dissent and would affirm the judgments of the appellate and circuit courts. Defendant, in its post-trial motion, sought only the entry of judgment notwithstanding the verdict. In the appellate court it conceded that it had waived any right to remandment and a new trial. In this court defendant asked only “that the judgment of the appellate court may be reversed and defendant’s appeal considered on its merits.” Despite these protestations that defendant sought no new trial, the majority reverses and remands for a new trial.
As authority for considering the merits and reversing for a new trial, the majority cites Hux v. Raben (1967), 38 Ill. 2d 223, and Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198. In Hux the appellate court reversed a decree for specific performance (74 Ill. App. 2d 214), and it was contended in the supreme court that the appellate court had reversed on grounds not raised by the parties. The supreme court stated: “Our examination of the briefs in the appellate court satisfies us that the adequacy of the contract to support a decree of specific performance was challenged in that court.” (38 Ill. 2d 223, 224.) In Inolex, involving the validity of a tax assessment, the court considered that it was essential that it consider the effect of an alleged failure to give the notice required by the statute. How these opinions can be distorted to support a grant of relief clearly waived in the circuit court and not requested on appeal either in the appellate court or in this court is not readily apparent.
In Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, the court discussed at great length the need for specificity in designating errors in a post-trial motion and refused to consider allegedly erroneous instructions. It is difficult to reconcile a decision refusing to grant relief for want of specificity in the post-trial motion with the decision here which forces upon defendant relief which it has repeatedly asserted it does not want.
The appellate court was correct in dismissing the appeal. The effect of the majority opinion is to completely emasculate the established rules which limit the scope of the issues which may properly be considered on appeal and the nature of the relief which may appropriately be granted.
JUSTICE SIMON joins in this dissent.