• 1 The first question to be resolved is whether plaintiff's products liability count was properly reinstated before the second trial. White Way contends that the September 14, 1977, order dismissing plaintiff's products liability count was final and appealable since it disposed of a distant cause of action ( Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 295 N.E.2d 41) and included the requisite finding under Supreme Court Rule 304 (Ill. Rev. Stat. 1977, ch. 110A, par. 304). It argues that because plaintiff failed to appeal the order or file a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) the trial court lost jurisdiction of the case and could not reinstate the count.
It held, too, that because judgment was entered on the verdict returned in favor of defendant on his counterclaim on December 14, 1982, nunc pro tunc December 6, 1982, plaintiffs' post-trial motion filed February 17, 1983, was not timely filed, and that it was without jurisdiction to hear the appeal. It dismissed the appeal filed by plaintiffs and remanded plaintiffs' action for nonpayment of the promissory notes to the circuit court for further proceedings. We consider first the question whether the appellate court correctly dismissed plaintiffs' appeal. Plaintiffs' cause of action on the promissory notes, although arising from the same transaction, was separate and distinct from defendant's action for the damages asserted in the counterclaim; therefore, when the circuit court made the finding required under Rule 304(a) (103 Ill.2d R. 304(a)), the judgment became appealable. ( Sabath v. Mansfield (1978), 60 Ill. App.3d 1008; Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1.) This court has held that "[t]o vest the appellate court with jurisdiction a party must file a notice of appeal within 30 days after entry of the judgment appealed from, or within 30 days after entry of an order disposing of a timely post-trial motion." ( Archer Daniels Midland Co. v. Barth (1984), 103 Ill.2d 536, 538.)
In each case, the court has determined that where the elements of proof for several causes of action are separate and distinct, then each cause of action constitutes a separate claim. ( Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 295 N.E.2d 41; Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315; Freeman v. White Way Sign Maintenance Co. (1980), 82 Ill. App.3d 884, 403 N.E.2d 495.) The cases cited by the defendant are more than adequately distinguished by these authorities for us to conclude that the order of the circuit court was a final judgment as to two separate claims brought by the plaintiff.
" • 2, 3 An order or judgment from which an appeal might have been taken is not reviewable on appeal from a subsequent order entered in the same cause. ( Harty v. Kirby (1975), 26 Ill. App.3d 688, 325 N.E.2d 406; see also Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315.) Where a final order has been vacated pursuant to a section 72 petition, and the parties go to trial, the party whose judgment was vacated, having failed to prosecute an appeal, is precluded, after the subsequent trial and judgment, from making a collateral attack on the order vacating the first judgment. ( Johnson v. Coleman (1977), 47 Ill. App.3d 671, 365 N.E.2d 102; Halter v. Schoreck (1966), 69 Ill. App.2d 104, 216 N.E.2d 278.) Petitioner, by choosing not to take timely appeal from the order vacating the default judgment which had been previously entered in her favor, has in effect waived her right to appeal from that order. ( Johnson; Holt v. Holt (1979), 71 Ill. App.3d 87, 388 N.E.2d 1353.)
Accordingly, it held that although all three counts arose from the same transaction or occurrence, the basis of recovery in counts II and III differed from that of count I and that therefore the appeal was proper. (See also Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 295 N.E.2d 41.) In light of the fact that recovery under counts I and II of plaintiff's amended complaint is predicated upon two separate and distinct statutes and because the relief requested under count II differs from that of count I, we find the trial court's order dismissing count II to be a final order and appealable pursuant to Rule 304. (Ill. Rev. Stat. 1977, ch. 110A, par. 304.
Although the order appealed from included the special finding required by Rule 304, this fact cannot confer appellate jurisdiction if the order is not in fact final. ( Crane Paper Stock Co. v. Chicago Northwestern Ry. Co. (1976), 63 Ill.2d 61, 344 N.E.2d 461; Smith v. Interstate Fire Casualty Co. (1977), 47 Ill. App.3d 555, 362 N.E.2d 38; Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315.) An order is final if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate branch thereof. ( Smith v. Interstate Fire Casualty Co.; Cohen v. Sterling Nursing Home, Inc.) An order is not final if the court retains jurisdiction for future determination of matters of substantial controversy.
• 1 Before oral argument this court granted the defendants' motion to dismiss the appeal as to the individual defendants. Supreme Court Rule 304(a) provides that the time for filing the notice of appeal runs from the time of the entry of the court's finding that there is no just reason for delaying enforcement or appeal. The plaintiffs having failed to appeal the trial court's order in 1971, the present appeal is not timely and this court is without jurisdiction to hear the case. ( Johnson v. Coleman (1977), 47 Ill. App.3d 671, 365 N.E.2d 102, appeal denied (1977), 66 Ill.2d 630; Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315, appeal denied (1977), 66 Ill.2d 628; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 295 N.E.2d 41.) The plaintiffs' contention that the Rule 304(a) finding was inappropriately entered because a single claim was alleged against all the parties is without merit.
" • 4 A judgment, order or decree from which an appeal might have been taken may not be reviewed on appeal from a subsequent order entered in the same cause. ( Harty v. Kirby (1975), 26 Ill. App.3d 688, 325 N.E.2d 406; see also Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315.) Where no timely appeal is taken from a final and appealable order this court is without jurisdiction to consider the propriety of that order. ( Goldstick v. Saporito (1974), 22 Ill. App.3d 621, 317 N.E.2d 774.