Johnson v. Cook Cnty.

• Decision Date: 16 February 1938
• Docket Number: No. 24361.,24361.
• Citation: 368 Ill. 160,13 N.E.2d 169
• Parties: JOHNSON v. COOK COUNTY.
• Court: Illinois Supreme Court

368 Ill. 160

13 N.E.2d 169

JOHNSON

v.COOK COUNTY.

No. 24361.

Supreme Court of Illinois.

Feb. 16, 1938.

Action of trespass by William B. Johnson against the County of Cook. Judgment for plaintiff for $3,500, 8 N.E.2d 220, and, two days before a year had expired since judgment was entered, defendant filed a motion for leave to file notice of appeal. Motion to dismiss the appeal was overruled and the judgment was reversed by the Appellate Court, and plaintiff appeals.

Judgment of Appellate Court reversed and remanded, with directions.

WILSON, J., dissenting.Appeal from Second Division, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Charles Y. Miller, Judge.

Coburn, Kearney & Coburn, of Chicago (Louis T. Herzon, of Chicago, of counsel), for appellant.

Thomas J. Courtney, State's Attorney, of Chicago (Jacob Shamberg, William P. Kearney, and Jacob L. Sheer, all of Chicago, of counsel), for appellee.

FARTHING, Chief Justice.

On April 5, 1935, the circuit court of Cook county entered judgment upon a verdict for $3,500 in favor of William B. Johnson in an action of trespass brought by him against Cook county. No appeal was perfected within ninety days after the entry of the judgment, but on April 3, 1936, two days before the year expired, defendant filed a motion in the Appellate Court for the First District for leave to file notice of appeal in the circuit court. On April 16, 1936, the Appellate Court granted the motion or petition, and on April 18, 1936, the notice of appeal, with a copy of the Appellate Court's order indorsedthereon, was duly served. Johnson's motion to dismiss the appeal was overruled, and the Appellate Court reversed the judgment he had obtained. We have granted him leave to appeal.

Johnson contends that the Appellate Court erred in refusing to dismiss the appeal, because the notice of appeal was not filed in the circuit court within one year after the entry of the judgment complained of, as required by section 76 of the Civil Practice Act, Ill.Rev.Stat.1937, p. 2410, c. 110, § 200, and by Rule 34 of this court, Smith-Hurd Stats. c. 110, § 259.34. The right to appeal must be availed of in strict compliance with the statute, People v. Davis, 365 Ill. 389, 6 N.E.2d 643, and, unless statutory authority can be found for permitting the notice of appeal to be filed in the trial court more than a year after entry of the judgment, the appeal should have been dismissed.

Section 76 of the Civil Practice Act provides: ‘(1) No appeal shall be taken to the Supreme or Appellate Court after the expiration of ninety days from the entry of the order, decree, judgment or other determination complained of; but, notice of appeal may be filed after the expiration of said ninety days, and within the period of one year, by order of the reviewing court, upon motion and notice to adverse parties, and upon a showing by affidavit that there is merit in appellant's claim for an appeal and that the delay was not due to appellant's culpable negligence. * * * (2) An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court,’ etc.

Rule 34 of this court, Smith-Hurd Stats. c. 110, § 259.34, as it existed prior to October, 1937, provided: ‘(1) A copy of the notice by which the appeal is perfected shall be served upon each appellee and upon any co-party who does not appear as appellant, and upon any other person or officer entitled by law to a notice of appeal, within 5 days after said notice of appeal is filed in the lower court. (a) Where the appeal is taken as of right, such service shall be made within ninety days from the entry of the order, decree, judgment or other determination from which appeal is taken. (b) Where notice of appeal may be filed only by leave of the reviewing court, the time within which such service shall be made shall begin to run on the date when the notice of appeal, with the order of allowance indorsed thereon, is transmitted to and received by the court appealed from. Such service shall be made within one year from the entry of the order, decree, judgment or other determination from which appeal is taken.’ At the October Term, 1937, Smith-Hurd Stats. c. 110, § 259.34, we amended this rule by striking out the italicized sentence above.

The language of section 76, above quoted, plainly requires that the notice of appeal shall be filed ‘within the period of one year,’ and rule 34 requires that notice of appeal shall be served within five days after it is filed in the court appealed from, except that where the appeal is taken as of right, such...