Rubinson v. Pancoe

203 N.E.2d 767, 54 Ill. App. 2d 224, 1964 Ill. App. LEXIS 1053

• Court: Appellate Court of Illinois
• Decided: December 2, 1964
• Docket: Gen. 49,923
• Status: Published

Opinion

MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff’s complaint consists of five counts, some in law and some in equity. The trial court entered an order as to Counts I and III dismissing them for want of equity. The same order made disposition of law Counts II and V by dismissing them and entering judgment thereunder in favor of defendants. It is from this order that plaintiff has sought to appeal.

Prom the record it appears that the trial court has made no disposition of Count IV of the complaint. It is, therefore, still pending, and the order which thus disposed of “fewer than all the claims” is not appealable without “an express finding that there is no just reason for delaying enforcement or appeal.” Ill Rev Stats c 110, § 50(2). There is no such finding in the instant case.

In this situation we are without power to determine the appeal, and it is dismissed at appellant’s costs. Cook County v. Hoytt, 41 Ill App2d 122, 19 NE2d 150; Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787.

Faced with the prospect of this dismissal, appellant has made a motion for leave to withdraw the appeal. We are aware of no authority for such procedure, and the motion is denied. If, however, the subject matter of this appeal were to be properly presented for review by this court at a later date, the abstracts and briefs now on file could be employed in that appeal without reprint.

Appeal dismissed.

DRUCKER and McCORMICK, JJ., concur.