Rubinson v. Pancoe , 54 Ill. App. 2d 224 ( 1964 )

54 Ill. App. 2d 224 (1964) 203 N.E.2d 767

Adolph A. Rubinson, Plaintiff-Appellant,
v.
Morris Pancoe, et al., Defendants-Appellees.

Gen. No. 49,923.

Illinois Appellate Court — First District, Fourth Division.

December 2, 1964.

Adolph Allen Rubinson & Associates, of Chicago (Norman Hanfling, Esq., of counsel), for appellant.

Emmet Cleary, of Chicago, for appellees.

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.

From 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.

[1] 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. App. 2d 122, 19 NE2d 150; Ariola v. Nigro, 13 Ill. 2d 200, 148 NE2d 787.

[2, 3] 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.