Davidson Masonry & Restoration, Inc. v. J. L. Wroan & Sons, Inc.

• Decision Date: 23 November 1971
• Docket Number: Gen. No. 11356
• Citation: 2 Ill.App.3d 524,275 N.E.2d 654
• Parties: DAVIDSON MASONRY & RESTORATION, INC., a Corporation, Plaintiff-Appellee, v. J. L. WROAN & SONS, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 654

275 N.E.2d 654

2 Ill.App.3d 524

DAVIDSON MASONRY & RESTORATION, INC., a Corporation Plaintiff-Appellee, v. J. L. WROAN & SONS, INC., Defendant-Appellant.

Gen. No. 11356.

Appellate Court of Illinois, Fourth District.

Nov. 23, 1971.

Fleming, Messman & Lapan, Bloomington, for appellant; Roger D. Lapan, Bloomington, of counsel.

Ryan & Heller, Mattoon, for appellee; Harlan Heller, Mattoon, of counsel.

SMITH, Presiding Judge.

The plaintiff subcontractor sued its defendant contractor for the balance due on the masonry subcontract. The trial court directed the jury to return a verdict for the plaintiff in the sum of $6,863.21 and entered judgment. The defendant appeals. The plaintiff suggests that there was no final appealable order in existence at the time the notice of appeal was given and hence the appeal should be dismissed. Supreme Court Rule 301, Ill.Rev.Stat.1969, ch. 110A, § 301, provides:

'every final judgment of a circuit court in a civil case is appealable as to right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional * * *.'

The jurisdictional challenge is well taken. The notice of appeal was filed June 5, 1970. It stated on its face that it is an appeal 'from the judgment order entered on the 7th day of May, 1970, in favor of the plaintiff and against the defendant on plaintiff's motion for directed verdict * * *.' The only transaction to which this notice of appeal could relate so far as this record, the abstract and the supplemental abstract show is a docket entry made by the trial judge which reads:

'Cause called for further hearing. Motion for directed verdict allowed. Jury instructed. Jury returns a verdict in favor of the Plaintiff and against the Defendant and fixes Plaintiff's damages in the sum of $6,863.21. Judgment on the verdict. Motion by Defendant for leave to file appeal Bond and perfect appeal. Appeal bond fixed in the sum of $ * * *. Clerk is authorized to approve appeal Bond. See written order (WJS).'

The words 'see written order' suggest that that which precedes it is incomplete, insufficient and inadequate to give a full picture and requires reference to the written order. For such a true picture, one must then turn to a written order made at the time the docket entry was made or to a written order presented, signed and filed at a later date. On July 23, a written judgment order undated was filed with the circuit clerk. Appellant's abstract refers to this judgment by saying: 'Not abstracted in full by defendant-appellant as defendant-appellant had already filed its notice of appeal on June 5, 1970, appealing from an order shown on C 3 of this record dated May 7, 1970, which order is set forth in full in this abstract'. The supplemental abstract and the record show that the written order referred to contained these recitals among others:

'WHEREUPON, judgment is entered for the plaintiff and against the defendant in the amount of $6,863.21, together with costs of suit as a final judgment in bar of action.

'IT IS FURTHER ORDERED that plaintiff's request for interest upon the sums claimed in plaintiff's complaint shall be considered by the court.

'In the event of an appeal in this cause, defendant's bond is fixed in the amount of $10,294.81. It is further ordered that upon presentation of a bond executed by the defendant with J. L. WROAN as surety upon said bond, the Clerk is authorized to approve the bond.

'IT IS FURTHER ORDERED that no proceedings relative to the collection of the judgment herein shall be taken during the pendency of the thirty day period in which the defendant is entitled to file his notice of appeal.'

The plain language of that judgment order supplies the deficiencies apparent in the memorandum of May 7, and in clear and unequivocal terms indicates that the defendant is entitled to a thirty-day period from the date of that instrument to file his notice of appeal. In Freeport Motor Casualty Co. v. Tharp, 406 Ill. 295, 94 N.E.2d 139, 142, it is stated:

'Freeman, in his work on 'Judgments,' (vol. I, sec. 48, 5th ed.) states: 'Before a pronouncement should be taken as the judgment, it must be clear that it was intended as such and not merely an announcement of the opinion of the court or an indication of what the judgment is going to be.'

'It has repeatedly been held that a memorandum signed by the judge cannot be taken or used as the record judgment. It is but a direction to enter judgment.'

Rule 272 of the Supreme Court, Ill.Rev.Stat.1969, ch. 110A, § 272, effective January 1, 1967, states:

'If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be...