Dowling v. Jensen

Full title: Daniel Dowling and Highland Cab Co., a Corporation, Plaintiffs-Appellants…

Court: Appellate Court of Illinois, First District. Third Division

Date published: Dec 14, 1960

171 N.E.2d 107 (Ill. App. Ct. 1960)

171 N.E.2d 107

Opinion

Gen. No. 48,111.

December 14, 1960.

Appeal from the Municipal Court of Chicago; the Hon. JOSEPH A. POWER, Judge, presiding. Appeal dismissed.

Unger Unger, of Chicago (Donald Lipman, of counsel) for appellants.

Harring Paulson, of Chicago (Walter M. Ketchum, of counsel) for appellee.

MR. JUSTICE DEMPSEY delivered the opinion of the court.

The plaintiff, Daniel Dowling, was a cab driver for his coplaintiff, the Highland Cab Co. They brought this action to recover for personal injuries and property damage sustained in a collision between their cab and the defendant's auto. The defendant moved for summary judgment on the ground that a deposition taken from Dowling showed that he was guilty of contributory negligence as a matter of law. The motion was granted.

[1] This appeal is from the judgment. However, the abstract of the record contains only the order sustaining the motion for a judgment. An order sustaining a motion for summary judgment is not a judgment but is merely a ruling that the defendant is entitled to a judgment.

[2] It is well established that an appeal should be dismissed when the abstract does not show any judgment entered by the trial court. Harris v. Annunzio, 411 Ill. 124, 103 N.E.2d 477; Hayes v. Industrial Commission, 383 Ill. 272, 48 N.E.2d 940; Campbell v. Fazio, 23 Ill. App.2d 106, 161 N.E.2d 579; Clark v. Titone, 10 Ill. App.2d 135, 134 N.E.2d 348.

We have also looked into the record and no judgment is shown there. In this respect this case is similar to Hayes v. Industrial Commission in which the court said:

"The transcript of the record on appeal must show a final judgment, and the failure to show such judgment in the transcript and in the abstract of the record, is ground for affirmance or dismissal."

Further on in its opinion the court said this:

"Here, no judgment sought to be reviewed is shown by the abstract. We have said many times that we would not search the record where the abstract was insufficient. However, in this case, a search of the record discloses an omission even more fatal. It discloses that the transcript filed in this court does not show any final judgment."

[3] Because no judgment appears in the abstract, there is nothing for this court to review and the appeal must be dismissed.

Appeal dismissed.

SCHWARTZ, P.J. and McCORMICK, J., concur.