Cosgrove v. New York, C. & St. L.R. Co.
| Citation | 138 N.E.2d 112,11 Ill.App.2d 574 |
| Decision Date | 15 November 1956 |
| Docket Number | Gen. No. 56-0-4 |
| Parties | Albert R. COSGROVE, Plaintiff-Appellant, v. The NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a Corporation, Defendant- Appellee. |
| Court | United States Appellate Court of Illinois |
Zeno Middleton, E. St. Louis, for appellant.
Pope & Driemeyer, E. St. Louis, for appellee.
The defendant herein filed a motion to dismiss this appeal for failure of appellant to comply with the rules of court. Prior to filing the briefs this motion was presented to a judge of this court in vacation who relied upon the representations of appellant's counsel set forth in his objections, and thereupon denied the motion.
Upon final hearing in this court, the actual procedure that was followed has been shown to this court from the official records. It is shown therein that the trial court dismissed the complaint on motion and entered final judgment for defendant on December 21, 1955. Plaintiffs filed notice of appeal therefrom on January 11, 1956.
The plaintiffs had until March 12, 1956, to file the record on appeal in this court by reason of the 60 day rule. App.Ct. Rule 1(2)(d); Sup.Ct. Rule 36, Ill.Rev.Stat.1955, c. 110, § 101.36. Section (e) of this rule further provides for granting additional time by the reviewing court or a judge thereof during vacation. No authority is conferred upon the trial court or judge thereof to extend the time for filing the record on appeal in any reviewing court. There is a provision granting to the trial judge authority to extend the time for filing a report of proceedings not more than 45 days. If such an extension is granted, the rule further provides (Par. d) that the time for filing the record on appeal is automatically extended 10 days beyond the extended time for filing the report of proceedings.
Appellant's objections to the dismissal of this appeal represented that a trial judge had granted 30 days' extension of time to file the report of proceedings and that a report of proceedings had been filed within the extended period. These representations were the basis for the vacation order denying the motion to dismiss the appeal.
Apparently appellant's counsel misunderstood the provisions of the rule, for this court now finds that the praecipe for record filed by appellant did not call for the inclusion of a report of proceedings, since the case was dismissed on motion attacking the complaint, without hearing on evidence.
We further find that...
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