First Finance Co. v. Ross
| Decision Date | 15 October 1965 |
| Docket Number | Gen. No. 50657 |
| Citation | 211 N.E.2d 588,64 Ill.App.2d 474 |
| Parties | FIRST FINANCE COMPANY, Plaintiff-Appellee, v. Hugh ROSS and Margaret M. Ross, individually and doing business as Triangle Refrigeration Engineers, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Carl J. Greenberg, Chicago, for defendants-appellants.
Masor, Baime & Gainer, Chicago, for plaintiff-appellee.
Defendants appeal from a judgment entered in favor of plaintiff for conversion of the latter's property, with a special finding of malice against defendant Hugh Ross. Plaintiff filed objections to various motions of the defendants and in addition filed a counter-motion requesting this court to dismiss the appeal on the ground that defendants failed to file the necessary record on appeal within the requisite time.
The relevant facts are not in dispute. On March 12, 1965, the trial court entered the judgment for conversion; on March 31 defendants' trial counsel, John W. Bennett, filed a motion for a new trial or in the alternative for judgment in defendants' favor, which was denied on April 2; on April 3 a notice of appeal from the judgment was filed on behalf of defendants by Bennett; on May 28 an 'amended' notice of appeal was filed by Carl J. Greenberg, an attorney subsequently engaged by defendants; on June 1 the trial court in defendants' motion purported to extend for 30 days the time for defendants to file the report of proceedings and the record on appeal; on July 1 the record on appeal was filed.
In support of its motion to dismiss this appeal plaintiff contends that pursuant to Supreme Court Rule 36* the time allowed for filing the report of proceedings expired on May 23 (50 days after filing the notice of appeal); that the trial court thereafter lacked jurisdiction to extend the filling dates; consequently the order of June 1 is void ab initio. In opposition to plaintiff's motion, defendants assert that Bennett had no authority to file a notice of appeal in that he was discharged as their attorney prior to the hearing on defendants' motion for a new trial; that Greenberg was subsequently engaged as their attorney to prosecute their appeal; that in furtherance of his undertaking Greenberg reviewed the file of this cause but did not discover that a notice of appeal had been filed, nor did he otherwise have knowledge thereof; that when Greenberg attempted to file a notice of appeal on May 28 he was then informed of the prior notice by the Clerk's Office and therefore filed an 'amended notice'; that notwithstanding Bennett's lack of authority the April 3 notice of appeal was so defective as to constitute a nullity and should be stricken from the record; that the record was completed and filed in this court within 30 days of the June 1 order and within the requisite time under the 'amended notice'; and that defendants' attorney was not culpably negligent.
Supreme Court Rule 36(1)(c) provides that the report of proceedings be duly certified by the trial court and filed within 50 days after the notice of appeal shall have been filed; that the court may extend this period upon application made before the expiration thereof. Section (2)(d) of the rule provides that the record on appeal shall be filed in the reviewing court not more than 60 days after filing the notice of appeal; but, '[i]f the time for filing the report of proceedings is extended, the time within which the record on appeal must be filed is without the necessity of an order extended 10 days beyond the extended time for filing the report of proceedings.' Rule 36(2)(g) requires an appeal to be dismissed upon failure to file the record in the reviewing court within the allotted time. That part of the trial court's June 1 order extending the time for 30 days to file the record is ineffective. As stated in McDonald v. McDonald, 351 Ill.App. 432, 436, 115 N.E.2d 567, 569:
Supreme Court Rule 36 vests no authority in the trial court to extend the time for filing the record on appeal, other than that which automatically results from an order extending the time to file the report of proceedings * * *.
The 30 day extension purported to have been granted defendants by the trial court on June 1 to file the report of proceedings was void because that court had no jurisdiction to grant an extension where the application therefor was made after the expiration of the original 50 day period. Ticktin v. Verunac et al., Ill.App., 212 N.E.2d 302 (First Dist.); Grossi Brothers, Inc. v. Schmidt, 44...
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Heller Financial, Inc. v. Johns-Byrne Co.
...when motion to amend was filed more than eight months after the denial of the final post-trial motion); First Finance Co. v. Ross (1965), 64 Ill.App.2d 474, 211 N.E.2d 588 (motion to amend filed 50 days after Rule 303 safe-harbor period deprived court of ability to allow the motion).) Here,......
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McErlean v. Union Nat. Bank of Chicago
...timely made in the reviewing court (see In re Estate of Meirink (1957), 11 Ill.2d 561, 144 N.E.2d 591, and First Finance Co. v. Ross (1965), 64 Ill.App.2d 474, 211 N.E.2d 588). His suggestion of extenuating circumstances in that he was unable to locate the court record is unpersuasive for s......
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...Reeder v. Old Oak Town Center (1984), 124 Ill.App.3d 1045, 1048, 80 Ill.Dec. 322, 465 N.E.2d 113; see also First Finance Co. v. Ross (1965), 64 Ill.App.2d 474, 211 N.E.2d 588 (notice of appeal could not be amended 50 days after initial 30 day Here plaintiff's original notice was filed on Ja......
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Kawa v. Harnischfeger Corp.
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