Cullinan v. Cullinan

• Decision Date: 17 April 1936
• Docket Number: Gen. No. 8934.
• Citation: 1 N.E.2d 921,285 Ill.App. 272
• Parties: CULLINAN v. CULLINAN.
• Court: United States Appellate Court of Illinois

285 Ill.App. 272

1 N.E.2d 921

CULLINAN

v.CULLINAN.

Gen. No. 8934.

Appellate Court of Illinois, Third District.

April 17, 1936.

Appeal from Circuit Court, Tazewell County; John T. Culbertson, Jr., Judge.

Action by Edward J. Cullinan against Richard A. Cullinan. From a judgment for defendant, plaintiff appeals, and defendant moves to dismiss the appeal, or to strike the cause from the docket.

Proceeding dismissed.Potts & Allison, William A. Potts, and Robert H. Allison, all of Pekin, for appellant.

George Z. Barnes, of Peoria, and Jesse Black, Jr., of Pekin, for appellee.

ALLABEN, Presiding Justice.

Edward J. Cullinan, plaintiff-appellant, brought suit against Richard A. Cullinan, defendant-appellee, in the circuit court of Tazewell county to the May term, 1930; said suit being filed on April 10, 1930. In this suit plaintiff claimed that he had sold to the defendant 11,252.8 cubic yards of gravel at 20 cents per cubic yard, for which he had not been paid. The case tried before a jury at the February term of said court, 1932, and a verdict was returned for the defendant. Judgment was entered on the verdict, from which judgment the plaintiff appealed to this court. The judgment was reversed and the case remanded for a new trial on account of errors shown upon the record. 269 Ill.App. 664. A new trial was had before a jury in December, 1934, and on December 6, 1934, the jury returned its verdict finding the issues for the defendant. A motion for a new trial was made on behalf of the plaintiff and argued before the court, and on December 31, 1934, the motion for new trial was denied and judgment was entered on the verdict. From this judgment of December 31, 1934, the plaintiff has prosecuted this appeal to this court, assigning many errors relied upon for reversal. None of these are set out, inasmuch as they will have no bearing upon the decision in this case, except the eleventh assignment of error, which will be hereafter discussed. The defendant filed in this court a motion to dismiss the appeal, or to strike the cause from the docket, together with suggestions in support of said motion. The plaintiff filed suggestions in opposition to the defendant's motion to dismiss the appeal. Counsel for both plaintiff and defendant in their briefs, and plaintiff more particularly in his reply brief, have discussed the merits of this motion at great length, although most of the discussion is a repetition of the suggestions previously filed as mentioned herein. This motion of defendant to dismiss plaintiff's appeal, or to strike the same from the docket, was taken with the case.

The motion is based upon the following facts: Final judgment was entered in this case on December 31, 1934; plaintiff filed his notice of appeal with the clerk of the circuit court of Tazewell county on January 18, 1935. Proper notice was served on appellee, and appellee entered a notice of appearance in said appeal on January 28, 1935. On February 4, 1935, plaintiff filed his præcipe for record, requesting, among other things, a “report of the proceedings” of the trial. No “report of the proceedings” or record or stipulation of facts material to the controversy were presented or filed in the court within sixty days after the filing of the notice of appeal. And no extension of time was asked for or granted by the court within said sixty days. On April 16, 1935, defendant filed his motion in the trial court to dismiss the appeal as set forth in the notice of appeal of January 18, 1935. A hearing was had on said motion on April 20, 1935, and the circuit court of Tazewell county dismissed the appeal.

In the meantime plaintiff filed a second notice of appeal within ninety days from the rendition of the final judgment against him, on March 23, 1935, and a præcipe for record on March 25, 1935. On April 20, 1935, defendant filed a motion to strike from the files the second notice of appeal filed on March 23, 1935, and the præcipe for record filed two days thereafter, which motion was on that day allowed, and the said second notice of appeal and præcipe issued thereafter were stricken from the file. Plaintiff, disregarding the order of April 20, 1935, dismissing the appeal and striking the second notice of appeal and the præcipe filed thereunder, has brought the record of this case to this court for the purpose of review by this court of all the proceedings had in the trial court. This report of proceedings was presented to the trial judge on the 18th day of May, 1935, and was signed and sealed by him on the 21st day of May, A. D....