*1 issue, merits the unlawful arrest we nonetheless must require ruling from trial specific safeguards court. The afforded peti- tioners in them hearings rescission entitle to clear and unambiguous of their dispositions petitions. inasmuch as the
Summarily, hearing resсission was conducted with procedural irregularities, proper administration justice compels this reinstate the statutory summary suspension. Furthermore, we shall remand this case for a hearing second to be conducted directives this opinion and wherein the issue of probable cause to arrest shall be properly presented to and disposed by the trial court.
For the foregoing reasons the rescission order of the circuit court of Iroquois County is reversed and the cause remanded the trial court for further proceedings consistent with the views expressed herein and with directions to reinstate the defendant’s sum- statutory mary suspension.
Reversed and remanded with directions.
BARRY,RJ., and STOUDER, J., concur. PARRISH, JULIE Indiv. and as Guardian and next friend Daniеlle Parr- ish, Minor, al., Plaintiffs-Appellees, v. JAMES LEE Defendants-Appel- et
lants. 3—87—0205, 3—87—0207, Third District Nos. 248 cons. 3— 8 7—0 Opinion April 28, filed March 22, 1988. Rehearing denied *2 HEIPLE, J., dissenting.
Dobbins, Fraker, Tennant, Perlstein, (Todd M. Ten- Champaign & Joy Associa- nant, counsel), appellants Benjamin and Carlе Clinic for Robbins tion. Sinn, Ingram Heyl, Royster, B. R. both of Voelker
Bradford and David Allen, Peoria, Lee. appellant & James Wollrab, Davis, Bloomington, appellant St. Costigan
Dean M. & Joseph Center. Medical Durree, Associates, Durree, Strodel, of Peoria Kingery &
Edward Wakeman, counsel), (Steven apрellee. court: opinion delivered the WOMBACHER
JUSTICE trial court’s order pleadings Defendants 23, favor dated an order in their vacating pur- of action cause plaintiff’s dismissed effectively which order on August of dismissal entered to an earliеr order suant for medi- defendants 24, 1985, Parrish sued Julie May On Parrish. Defendants Danielle daughter, her treating in negligence cal however, Hospi- venue; Brokaw a transfer of moved for appeared and ever Brokaw was there is no record and appeared tal never to Mc- this case trial court transferred April On served. County. Lean failed dismiss, pay alleging plaintiffs moved to
Defendants granted defend- 1986, the trial August On transfer costs. motions and dismissed action. ants’ Price, Jr., D. Riсhard plaintiffs’ attorney, On August 24, 1986, the dismissal order. On November filed motion an itemized list of the trial court ordered defense counsel submit 24 hearings. associated with the 18 and November expenses August Plaintiffs their were to these related within pay expenses motion to vacate provided plaintiffs’ submission. order further granted subject with the order subject plaintiffs’ compliance making payments provided plaintiffs’ for therein. The failed to make such payments.
On January 29, 1987, defendants filed motion to make dis- missal order final and appealable, alternatively, to dismiss with since prejudice plaintiffs failed to the November 24 order comply and trial court make the prayed August appeal- 18 order final and ablе. 23, 1987,
On February the trial court found plaintiffs failed to meet the order, conditions of the order, November vacated that and dismissed the case August 18 order. The trial court declared there was “no just delay reason enforcement оr ap peal,” consistent with Court Rule 304(a) (107 Ill. 2d R. 304(a).)
On March plaintiffs, having and employed new different *3 attorneys, filed a motion to vacate the dismissal, 23 order of February the affidavit of Julie Parrish attached thereto. A supplement to said motion was filed on March 1987. On defend- ants filed a mоtion to strike the to claiming motion vacate the trial jurisdiction court lacked to reconsider its February 23 order. Plain- tiffs’ motion was allowed the providing again November 24 order once viable, became except plаintiffs were to the satisfy conditions therein within days. five Defendants’ motion to strike was denied. On March 26, 1987, plaintiffs filed a letter indicating expenses paid the were to the March 25th order. On March this case was Thereafter, docketed in McLean County. defendants filed their notices of in Peoria appeal County.
For of purposes since the or brevity, particular parties substantive claims affected the by 304(a) finding Rule are not relevant in this ap- peal, there is no need for on further elaboration factual matters in this opinion.
The question posed is does a filed timely motion vacate the dismissal, of February 23 order which a contained Rule 304(a) finding, jurisdiction retain in as court so court permit said trial the dismissal of order 1987? Rule which 304(a), an Judgments Dispose from Final That Do Not governs “Appeals Proceeding,” provides: Entire relief parties multiple
“If or claims for are involved multiple action, as in an an be taken from a final appeal may judgment the or only to one or more fewer than all of claims parties but that finding if the trial has made an written express or appeal. there no reason for enforcement just delaying is entry a of the finding may Such bе made at time motion or on or thereafter the court’s own motion judgment on shall run appeal time the notice any filing The party. In the absence of such a entry required finding. from all the fewer than finding, any judgment adjudicates parties оf fewer than all the claims or the and liabilities rights revision at or and is appealable subject is enforceable all the entry judgment adjudicating time before any claims, parties.” (Emphasis liabilities of all the rights, and Ill. R. added.) (107 304(a)). 2d incorporates [language the circuit court order
“Unless court retains Rule no is and the circuit 304(a)], appeal permissible, cause, revise including power any over the entire judgment adjudi judgments any prior all at Plastics, v. (Petersen Inc. Ullо cating all claims.” Brothers hand, a other when 416.) 3d 373 N.E.2d On the App. and the a it loses 304(a) finding, trial court makes Rule revised, a post-trial cannot be then respective judgment final v. Elg Whit against such would be no effect. directed N.E.2d tington 149 Ill. 3d affd filed or after November to cases (prospective application Ill. 2d 344 16,1987). 304(a) of Rule
In court held that the rationale Elg appellate as to fewer than from an order final immediate finding or all of the parties, necessary all the claims countenance a Rule The court reasoned that to made. rule’s pur to thwart the motion would be by post-judgment
followed affirmed holding subsequently pose. appellate court’s in which the to all cases prospеctively Court and held Illinois decision of filed on or after its was filed or due to be notice 16,1987. Whittington (1987), Elg November *4 itself case, juris trial court had divested In the instant 19, 1987, motion for vacature on the plaintiff’s diction rule fil 23, 1987, order. The 30 allowed dismissal of thе February 23 were February court order ing partial an trial
447 subsequent Furthermore, tolled motion to plaintiffs vacate. timely failed to file an appeal in this court review of the propriety of the dismissal order.
The order allowing the motion to vacate the February vacated, order of hereby dismissal is and the defendants’ motion strike the aforesaid motion to is allowed. The trial hereby court’s reinstated, order of accordingly and the plaintiffs’ cause of action is August dismissed pursuant 1987, order dismissing plaintiffs’ cause of action.
This case is reversed and remanded further con- proceedings sistent with this decision.
Reversed and remanded. J.,
SCOTT, concurs. HEIPLE,
JUSTICE
dissenting:
disagree
I
with the
majority’s opinion that
circuit court was
without jurisdiction to rule on the рlaintiff’s timely filed motion to va
cate
it
because
had made
a finding
to Rule
For
304(a).
days subsequent to the
order,
or final
or until no
filed,
tice of
the circuit court
jurisdiction
retains
over
case.
(In re Estate
Tobin
appeal denied
(1987),
In the instant the circuit court entered a final order on Feb- ruary days, Within filed motion to vacate the order. She filed Thus, never a notice of appeal. the circuit court retained to rule vacate, on her motion to and the ruling on the motion should stand.
That also made a Rule 304(a) finding at the it entered the final order did not jurisdic- somehow divest court of tion to its modify judgment within 30 Rule 304(a) days. adopted simply easy method for determining judgments final orders as to fewer than all the parties or claims are appealable. It was not intended to immediately divest the circuit court of jurisdic- tion, or change otherwise the law regarding final orders and judg- *5 448 to 304(a)provide: As the committee comments Rule
merits. 304, as Rule effective adopted of this rule was “Paragraph (a) 1, (2) of section 50 1967, to former supplant paragraph January with change Act of substance but of the Civil Practice without provision, origi The amplification. supplanted statutory some 2238, 1955, §1) (Laws in 1955 to nally adopted p. appeal- for certain orders were determining method easy *** ***, moving to In the anything easy. be but proved able rules, the language the the Committee revised provision to *** it the the fact that is not court’s find emphasize slightly final, finding is the the but it court’s ing judgment that makes This did judgment appealable. that makes this kind a final 110A, Stat., par. 304(a), the Ill. Ann. ch. change law.” Comments, (Smith-Hurd 1985). at 157 Committee the (citing 3d 3 Commit (1971), App. See also Duncan v. Irwin Comments with approval). tee
Further, (1986), 149 Elg Whittington reliance on majority’s the 307, 344, for its hold as support 3d App. Ill. aff’d the circuit court of 304(a) immediately divests finding that a Rule ing applica in has no Elg The rule established jurisdiction, misplaced. Elg, the court enterеd a final order con to the instant case. In tion 304(a) Rule the or claims and made a cerning parties fewer than all 1985, third-party complain the finding 2, 1985. On May May The motion was denied on June moved to vacate the order. ants filed a nоtice third-party complainants the July On 2,1985, order. May as to the appeal asked the court dismiss defendants appeal, third-party
On the failure to file notice complainants’ third-party the for the appeal The com- 304(a) finding. third-party of the Rule days within 30 appeal filing the time for was tolled appeal maintained the plainants ruling the appeal, The court dismissed appellate motion. post-trial not toll the time for appeal motion dоes filing post-trial that the a dicta, it is the court indicated that doubtful 304(a). Rule In under motion in post-trial overt a a court retains whether circuit 304(a)finding. the face of a Rule Court, to the Illinois Elg
On decision initial rationale dis- court’s agreed аppellate higher allow 304(a) Rule does not reading a that strict missing appeal, and af- appeal, to toll the post-trial of a motion filing 304(a) Rule or not a under It silent as to whether firmed. was jurisdiction. court of divests plaintiff’s whethеr not the not concern
The case does present a filing a motion tolled the time for notice of post-judgment filing right never her appeal. plaintiff appeal pursuant exercised Rather, the Rule she on her to file а finding. rely right chose (Ill. motion post-judgment par. 1203), Rev. Stat. granted. post-judgment which was It clear that had plaintiff’s denied, motion the ap been and had she then filed a notice of appeal, peal untimely would is not by Elg, have been as еstablished but such the case. The long succeeds in majority's opinion overturning rule a standing circuit court retains over case subsequent (In or final order re Estate Tobin denied Ill. 2d deprives right post-judgment of her file (Ill. alert and circuit court еrrors Rev. Stat. possible *6 1203; par. see also Elliott v. Willis 530), and denies circuit courts the er opportunity possible review rors or final order a Rule once made. I dissent. Accordingly, NURSERY, INC.,
HICKORY CREEK Plaintiff-Appellee, v. JAMES G.
JOHNSTON, Defendant-Appellant. 3-87-0329,
Third District Nos. 3-87-0377 cons. Opinion 17, 1988. Rehearing filed March April denied