Atlas Finishing Co. v. Anderson

• Decision Date: 10 January 1949
• Docket Number: Gen. No. 44480.
• Citation: 83 N.E.2d 177,336 Ill.App. 167
• Parties: ATLAS FINISHING CO. v. ANDERSON.
• Court: United States Appellate Court of Illinois

336 Ill.App. 167

83 N.E.2d 177

ATLAS FINISHING CO.

v.ANDERSON.

Gen. No. 44480.

Appellate Court of Illinois, First District, First Division.

Dec. 27, 1948.

Rehearing Denied Jan. 10, 1949.

Appeal from Municipal Court of Chicago, Cook County; Joseph B. Hermes, Judge.

Forcible entry and detainer suit by Atlas Finishing Company against Alfred Anderson, individually and doing business as Anderson Manufacturing & Engineering Co. From an adverse judgment, defendant appeals. On motion to dismiss the appeal.

Appeal dismissed.James J. Walsh and Manuel J. Robbins, both of Chicago (Harry G. Fins, of Chicago, of counsel), for appellant.

Klutznick, Beber & Miller, of Chicago (Charles T. Kramer and Eugene H. Dupee, Jr., both of Chicago, of counsel), for appellee.

TUOHY, Justice.

Plaintiff filed a statement of claim in forcible entry and detainer in the Municipal Court of Chicago February 3, 1948. The suit involved the right to possession of the brick building known as 4118 West Lake Street and the brick building in the rear of 4118-20 West Lake Street, Chicago, which was occupied and used by defendant as a machine shop. The cause was heard by the court without a jury, and on March 12, 1948 judgment for possession was entered in favor of the plaintiff and against the defendant. On March 17, 1948 defendant presented his appeal bond and moved the court to approve the same. An order was entered continuing the motion until March 19th. On the latter date defendant filed a written motion for a new trial which was denied by the court on the same day. On March 19, 1948 the appeal bond in the sum of $3,000.00 was approved and ordered filed as of March 17, 1948, and on March 23, 1948 notice of appeal was filed whereby defendant sought to appeal ‘from the judgment for possession which was rendered and entered in the Municipal Court of Chicago in the above entitled cause on the 12th day of March, 1948, and the final order of denial of motion for a new trial by defendant-appellant entered in the Municipal Court of Chicago in the above entitled cause on the 19th day of the March, 1948 in favor of plaintiff-appellee and against defendant-appellant.’ (Italics ours.) A motion was made here by plaintiff to dismiss this appeal, which motion was reserved for final hearing.

We deem it unnecessary to discuss any of the questions raised other than whether or not this appeal was properly perfected.

Section 18 of the Forcible Entry and Detainer Act (par. 19, ch. 57, Ill.Rev.Stat.1947) provides in part as follows:

‘If any party shall feel aggrieved by the verdict of the jury or decision of the court, upon any trial had under this Act, such party may have an appeal, to be taken to the same courts, in the same manner, and tried in the same way as appeals are taken and tried in other cases. Provided such party files notice of appeal and bond within five (5) days from the rendition of the judgment, and no writ of restitution shall be issued in any cases until the expiration of said five (5) days. * * *’

Section 11 (par. 11) of the same Act states:

‘The provisions of the Civil Practice Act, and shall existing and future amendments of said Act and modifications thereof, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceedings hereunder in courts of record, except as otherwise provided in this Act.’

In the instant case the notice of appeal was not filed until March 23rd, or on the eleventh day after the judgment order of March 12th. Defendant argues that the Forcible Entry and Detainer Act being silent on procedure as to filing a motion for a new trial, the provisions of the Civil Practice Act must apply. He relies upon Section 68, (par. 192, ch. 110, Ill.Rev.Stat.1947), providing in part as follows:

‘(1) It shall be sufficient for the jury to pronounce their verdict by their foreman in open court, without reducing the same to writing if it is a general verdict, and the court shall enter the same in form, under the direction of the court; and if either party may wish to move for a new trial or in arrest of judgment, or for a judgment notwithstanding the verdict, he shall, before final judgment be entered, or within ten days thereafter, or within such time as the court may allow on motion made within such ten days, by himself or counsel, file the points in writing, particularly specifying the grounds of such motion, and final judgment and execution thereon shall thereupon be stayed until such motion can be heard by the court. The time for appeal from such judgment shall not begin to run until the court shall rule upon the motion.’

It is urged that the motion for a new trial having been filed within ten days from the entry of the judgment herein, it was in accordance with Section 68 of the Civil Practice Act, and that under the provisions of said section the five day period (provided for under Section 18 of the Forcible Entry and Detainer Act) did not begin to run until March 19th, when the motion for a new trial was denied. Defendant insists that the notice of appeal and the appeal bond were timely filed to meet the statutory requirements.

The fallacy of defendant's argument arises from the fact that Section 68 of the Civil Practice Act, upon which he relies, refers only to cases in which jury verdicts have been returned. It is to be concluded from a reading of Section 68 that no final judgment is entered upon the verdict until after the motion for a new trial is heard by the court or until after the expiration of the time provided in said section for the filing of such motion. There is no similar provision in the Civil Practice Act for cases tried without a jury.

The rule respecting motions for new trial in cases without a jury is no different today than it has always been. It is clearly stated in Climax Tag Co. v. American Tag Co., 234 Ill. 179, at page 182, 84 N.E. 873, 874:

‘A motion for a new trial in cases tried by a court without a jury is neither required nor authorized by law or the rules of practice, and can serve no purpose whatever in preserving questions for review in this court.’ (Italics ours.)

The motion in the instant case was regarded throughout, by the defendant, as a motion for a new trial. The notice of appeal, as already indicated, specifically refers to it as an ‘order of denial of motion for a new trial.’ It was, therefore, unauthorized by law and, as pointed out, preserves nothing for review. A reading of the motion itself clearly discloses that it embodied assignments involving rulings of the court upon the trial, and not such matters as would present either legal or equitable reasons for vacating a judgment, such as fraud, accident, mistake, newly discovered evidence, or the like, or such facts which, if known by the court upon the trial, would have legally prevented the entry of the judgment. So far as anything to the contrary appears in the statutes, the judgment of March 12th entered by the court after a trial without a jury was a final judgment, and in our opinion the time for appeal began to run from the day it was entered. The five day requirement for filing notice of appeal and bond under the Forcible Entry and Detainer Act has frequently been held by our courts to be jurisdictional. Chicago Housing Authority v. Frank, 335 Ill.App. 456, 82 N.E.2d 205;Kruse v. Ballsmith, 332 Ill.App. 301, 75 N.E.2d 140;Gholston v. Terrell, 292 Ill.App. 192, 10 N.E.2d 868;Lanquist v. Grossman, 282 Ill.App. 181.

With respect to motions to vacate judgments within the thirty day period, as regulated by the Civil Practice Act, Section 50, Subsection 7, Chap. 110, Ill.Rev.Stat.1947, c. 110, § 174(7), the pertinent provision of which is:

‘The court may in its discretion before final judgment, set aside any default, and may within thirty days after entry thereof set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable,’ (Italics ours.) the motion in the instant case, designated and regarded by defendant as a motion for a new trial, has no semblance of compliance with this provision of the Practice Act. There was no affidavit accompanying the motion and no such good cause shown as was contemplated by this section of the Practice Act. Any other view upon this question would, in our judgment, allow the forcible detainer statute to be circumvented, delaying the finality of the judgment by merely filing a motion like the instant one, not authorized by law, instead of complying with the plain requirements of the statute for the filing of a bond and a notice of appeal within five days. As was said in Kruse v. Ballsmith, supra, 332 Ill.App. at page 307, 75 N.E.2d at page 143:

‘* * * the purpose of the Forcible Entry and Detainer Act is to afford a summary remedy in which the rights of the parties may be speedily determined, and a delayed appeal would be inconsistent therewith.’

Nor does the provision of Par. 83, (Sec. 2), Chap. 77, Ill.Rev.Stat.1947:

‘Any such judgment, decree or order may hereafter be modified, set aside or vacated prior to the expiration of thirty days from the date of its rendition or in pursuance of a motion made within such thirty days, wherever, under the law heretofore in force, it might have been modified, set aside or vacated prior to the expiration of the term of court at which it was rendered or in pursuance of a motion made at that term’ help the position of the defendant upon this appeal. This section of the judgment statute was enacted at the same time as the Civil Practice Act, Section 50, Subsection 7, already noticed. It was not in the judgment statute before the passage of the Civil Practice Act, and the two are in pari materia. The proper rule of construction is stated in Frank v. Salomon, 376 Ill. 439, at pages 445, 446, 34 N.E.2d 424, 427:

‘Statutes in pari materia are to be construed together. * * * The well-settled rule of statutory construction is that where there is found in a statute a particular...