Chicago Hous. Auth. v. Frank

• Decision Date: 01 November 1948
• Docket Number: Gen. No. 44483.
• Citation: 82 N.E.2d 205,335 Ill.App. 456
• Parties: CHICAGO HOUSING AUTHORITY v. FRANK.
• Court: United States Appellate Court of Illinois

335 Ill.App. 456

82 N.E.2d 205

CHICAGO HOUSING AUTHORITY

v.FRANK.

Gen. No. 44483.

Appellate Court of Illinois, First District, First Division.

Nov. 1, 1948.

Appeal from Municipal Court of Chicago; Frank E. Donoghue, Judge.

Action by Chicago Housing Authority against James Frank to recover premises occupied by defendant in a low-rent housing project operated by plaintiff. Verdict and judgment were entered for plaintiff, and from an order dismissing defendant's attempted appeal to Supreme Court, and from order denying defendant's motion for new trial, defendant appeals.

Affirmed in part, and dismissed in part.

Augustus L. Williams, of Chicago, for appellant.

Edward J. Fruchtman, of Chicago, for appellee.

TUOHY, Justice.

Plaintiff filed its statement of claim in the Municipal Court of Chicago seeking to recover possession of premises occupied by defendant in Ida B. Wells Homes, a low-rent housing project operated by plaintiff in the City of Chicago. There was a trial before a jury which returned a verdict for plaintiff on January 23, 1948. On the same date judgment was entered on the verdict. On January 26, 1948, defendant filed a motion for new trial and on the same date an order was entered denying the motion. On January 28, 1948, defendant filed an appeal bond, but no notice of appeal was filed until February 5, 1948. On March 1, 1948, plaintiff moved the trial court to dismiss the purported appeal to the Supreme Court and to strike the notice of appeal from the docket on the ground that defendant had failed to perfect his appeal by not filing notice of appeal within the statutory period, which motion was allowed on March 11, 1948. On the same day defendant filed a notice of appeal to this court complaining of the trial court's order dismissing the attempted appeal to the Supreme Court and also of the trial court's order denying defendant's motion for new trial.

Three questions are considered on the appeal: ‘(1) Was the notice of appeal to the Supreme Court filed in apt time; (2) did the trial court have jurisdiction to dismiss the appeal after the filing of a notice of appeal; and (3) was the notice of appeal to this court filed March 11, 1948, from the motion for a new trial made January 26, 1948, in apt time?

It appears from the foregoing that the notice of appeal to the Supreme Court was filed ten days after the entry of the judgment complained of. The plaintiff contends that the notice of appeal must be filed as prescribed in the forcible entry and detainer statute within five days from the rendition of the judgment. Defendant contends that bond having been filed within the five day period, the statute has been complied with if the formal notice of appeal is filed within ten days after the motion for new trial is denied. We find no warrant in the statute to support defendant's position.

Section 1 of the Civil Practice Act (Ill.Rev.Stat., 1947, ch. 110, par. 125) provides in part as follows:

‘The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in courts of record, except in * * * forcible entry and detainer * * * or other actions in which the procedure is regulated by special statutes.’

Subsection 2 of Section 31 of the Civil Practice Act (Ill.Rev.Stat., 1947, ch. 110, par. 155(2)) provides:

‘Proceedings in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, habeas corpus, mandamus, ne exeat, quo warranto and replevin, or other actions in which the procedure is regulated by special statutes, shall be in accordance with the statutes dealing therewith.’

Section 11 of the Forcible Entry and Detainer Act (Ill.Rev.Stat., 1947, ch. 57, par. 11) provides:

‘The provisions of the Civil Practice Act * * * shall apply to all proceedings hereunder in courts of record, except as otherwise provided in this Act.’

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

‘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. * * *’

The statutes set forth above plainly indicate that the appeal must be governed by the...