Bradford Supply Co. v. Waite

• Decision Date: 17 January 1946
• Docket Number: No. 29162.,29162.
• Citation: 64 N.E.2d 491,392 Ill. 318
• Parties: BRADFORD SUPPLY CO., Inc., v. WAITE.
• Court: Illinois Supreme Court

392 Ill. 318

64 N.E.2d 491

BRADFORD SUPPLY CO., Inc.,

v.WAITE.

No. 29162.

Supreme Court of Illinois.

Nov. 21, 1945.

Hearing Denied Jan. 17, 1946.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Pulaski County; L. M. Bradley, Judge.

Action by Bradford Supply Company, Inc., against Walter W. Waite and others to foreclose a materialman's lien on oil equipment, wherein the defendant Waite filed a counterclaim seeking damages against plaintiff and recovered judgment on the counterclaim. The motion filed by defendant Waite to strike plaintiff's petition for leave to appeal and alternative petition for a writ of error was granted, and plaintiff sues out a writ of error from the Supreme Court to the Appellate Court for review of the record.

Writ of error dismissed.

Henry I. Green and Oris Barth, both of Urbana, and Wham & Wham of Centralia (F. M. Nash, of Bradford, Pa., of counsel), for plaintiff in error.

Joe Crain, of Mound City, and Asa J. Wilbourn, of Cairo, for defendant in error.

WILSON, Justice.

This writ of error is a sequel to People ex rel. Waite v. Bristow, 391 Ill. 101, 62 N.E.2d 545. An understanding of the issues presented requires a summary review of the facts set forth in People v. Bristow. August 25, 1942, the plaintiff, Bradford Supply Company, Inc., filed its complaint in the circuit court of Pulaski county against R. G. Williams, Trustee, Herbert S. Duffy, W. R. Richey and Walter W. Waite. The relief sought was the foreclosure of a materialmen's lien on oil-well equipment furnished by plaintiff to Williams. Waite answered the complaint, denying that plaintiff was entitled to any of the relief prayed for, and filed a cross complaint or counterclaim seeking damagesagainst plaintiff. The action at law on Waite's counterclaim was tried by a jury separately from the other issues in the cause. October 28, 1943, the jury returned its verdict in favor of Waite, and fixed his damages at $37,500. November 9, 1943, the trial judge heard and denied motions for a new trial and for judgment notwithstanding the verdict. On the day named, namely, November 9, 1943, judgment was rendered on the verdict on the counterclaim in favor of Waite and against Bradford Supply Company, Inc., for $37,500, and costs. The latter filed its notice of appeal on November 27, 1943, its appeal bond on December 6, 1943, and in due course, perfected its appeal to the Appellate Court for the Fourth District. A transcript of the record was filed in the Appellate Court on January 26, 1944. On February 4, 1944, plaintiff filed its motion to dismiss the appeal without prejudice. Shortly thereafter, Waite also filed a motion to dismiss the appeal. On February 23, 1944, the Appellate Court allowed plaintiff's motion to dismiss the appeal without prejudice and granted plaintiff leave to withdraw the record. October 10, 1944, plaintiff filed in the Appellate Court a motion to vacate the order entered on February 23, 1944, dismissing its appeal without prejudice, to reinstate the cause on the docket of the court, for leave to withdraw its motion to dismiss the appeal without prejudice, and for other relief. Waite made a motion to strike plaintiff's motion. On October 25, 1944, Waite's motion to strike was denied and plaintiff's motion to reinstate the cause and for other relief was allowed in toto. A more formal order consonant with these findings was signed by a judge of the Appellate Court on October 30, 1944. This order followed the earlier order of October 25, reinstating the cause on the docket, and granting plaintiff permission to withdraw its motion to dismiss the appeal without prejudice. January 11, 1945, this court dismissed defendant's petition for leave to appeal and denied his motion to consider the petition for leave to appeal as a writ of error.

On January 16, 1945, Waite was granted permission to file an original petition for a writ of mandamus in this court. People ex rel. Waite v. Bristow, 391 Ill. 101, 62 N.E.2d 545, 551. The relief asked was that the three judges of the Appellate Court for the Fourth District be directed to expunge from the records of that court the order of October 25, 1944, and, also, the formal order of October 30, 1944. By appropriate pleadings, issues of law were made, the decisive question presented being whether the Appellate Court had jurisdiction to enter the order of October 25, 1944, vacating and setting aside its earlier order of February 23, 1944, dismissing the appeal on motion of plaintiff. The conclusion was reached that the Appellate Court was without jurisdiction, on October 25, 1944, to enter the challenged order. We pointed out that the words ‘without prejudice,’ used by the Appellate Court in dismissing the appeal on February 23, 1944, were words of ancient origin, and that the only effect of their inclusion in the order was to show that the judgment was neither affirmed nor reversed, nor the cause decided on the merits, leaving plaintiff (the appellant in the Appellate Court) in the same position it occupied before filing its appeal. It followed, necessarily, that the judgment of the circuit court was in full force and effect, precisely the same as if no appeal had ever been taken. We pointedly observed: ‘The appellant was free to perfect another appeal in any manner authorized by statute. If it failed to exercise or pursue that right it was prejudiced, not by the order dismissing the appeal, but by its own inaction.’ We held, and the statement in the opinion was necessary to our decision, and not dictum, as plaintiff repeatedly asserts in its briefs, that its only right to appeal after the dismissal of the appeal in the Appellate Court was by petition for leave to appeal, pursuant to section 76 of the Civil Practice Act, Ill.Rev.Stats.1943, c. 110, s 200. The judgment was entered on November 9, 1943, and the appeal dismissed more than ninety days thereafter on February 23, 1944. Plaintiff then enjoyed the privilege, to and including November 8, 1944, of filing a petition for leave to appeal under section 76 which grants permission to file a petition for leave to appeal within one year where a showing is made that the petitioner was not guilty of culpable negligence in failing to file notice of appeal within ninety days after the entry of judgment or in failing to prosecute its appeal when such notice has been filed. This, plaintiff did not do. Instead, the appeal was removed from the docket at plaintiff's instance and, likewise, from the jurisdiction of the Appellate Court. Plaintiff thus lost its right to appeal except upon a petition and leave granted under section 76. Admittedly, it did not file a petition under section 76 and, of course, no occasion presented itself to the Appellate Court for granting leave to file such a petition. In People ex rel. Waite v. Bristow, we also held, as necessary to a decision of the cause on its merits, and not as dictum, that the judgment of the circuit court, which was not written up by the clerk of that court until June 13, 1944, was not a nunc pro tunc judgment entered on June 13, 1944, as of November 9, 1943, specifically deciding, ‘The judgment was rendered on November 9, 1943, and properly entered in the minutes of the court on that date. * * * The minutes of the court contained ample authority for the clerk to write up the formal judgment as finally written up by him. When so written up by the clerk, it was the judgment of the court, entered on November 9, 1943. It was not, in any sense, a nunc pro tunc judgment. * * * A judgments exists from the time the court acts, even though it may not have been formally written on the record by the clerk.’ Finally, the contention was made and decided adversely to plaintiff that its motion to vacate the order dismissing the appeal be considered as a motion in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act.

The opinion of this court in People v. Bristow was filed on May 23, 1945. Thereafter, on June 2, 1945, more than eighteen months after the entry of judgment in the circuit court, plaintiff filed a notice of appeal dated May 31, 1945, and a petition for leave to appeal in the Appellate Court for the Fourth District seeking a reversal of the ‘order, decree, judgment, and determination of the said Pulaski Circuit Court, entered June 13, 1944.’ This petition is predicated upon the theory that it is a petition for leave to appeal filed within one year from the entry of judgment in the trial court, a theory directly contrary to the decision of this court in People v. Bristow. Waite interposed a motion to strike the petition for leave to appeal on the grounds, among others, that the Appellate Court lacked jurisdiction to grant a petition for leave to appeal unless it be filed within twelve months from the date of the entry of the judgment from which the appeal was taken; that the judgment was entered in the circuit court of Pulaski county on November 9, 1943, more than twelve months before the petition for leave to appeal was filed and, further, that this court in People v. Bristow had so decided. Suggestions and authorities were filed in support of, and also in opposition to, the motion to strike the petition for leave to appeal. Later, on July 30, 1945, the Bradford Supply Company filed a petition and motion supplemental to its petition for leave to appeal, making the petition and the record filed in its support in the Appellate Court a part of its newest petition and motion and, also, making the supplemental petition and motion a part of the petition for leave to appeal. By the petition and motion of July 30, plaintiff asked that if the Appellate Court be of the opinion that an appeal, or petition for leave to appeal, had been improvidently employed where the proper mode of neview was by writ of error the cause be considered as before the court of review on writ of error. Suggestions and authorities supported the motion....