Koepke v. Schumacher

• Decision Date: 18 February 1946
• Docket Number: Gen. No. 43150.
• Parties: KOEPKE v. SCHUMACHER et al.
• Court: United States Appellate Court of Illinois

328 Ill.App. 113

65 N.E.2d 224

KOEPKE

v.SCHUMACHER et al.

Gen. No. 43150.

Appellate Court of Illinois, First District, First Division.

Feb. 18, 1946.

Appeal from Circuit Court, Cook County.

Suit by Frank O. Koepke against Peter J. Schumacher, Alice Campo and others to foreclose a mortgage. From an order striking plaintiff's answer to petition of defendant Campo to vacate the foreclosure decree and for leave to defend and denying plaintiff's motion to set aside the same order, plaintiff appeals. The prior judgment of reversal, 324 Ill.App. 315, 58 N.E.2d 198, was reversed by the Supreme Court, 391 Ill. 355, 63 N.E.2d 507, and thereafter the Appellate Court granted plaintiff's motion for leave to suggest a diminution of record.

Reversed.Reuel H. Grunewald and Robert F. Kolb, both of Chicago, for appellant.

Harold O. Mulks, of Chicago, for appellee.

MATCHETT, Presiding Justice.

Koepke was plaintiff in a suit to foreclose a mortgage on real estate in which Mrs. Campo claimed an interest. She was served by publication only. He obtained a decree November 24, 1942. The premises were sold to Koepke December 23, 1942. Mrs. Campo filed a petition February 16, 1944, to have the decree set aside as to her and for leave to answer. This was after the period of redemption had expired. Koepke filed a verified answer to her petition. It was stricken on motion of Mrs. Campo, and a motion of Koepke to vacate the order was denied. He elected to abide by his answer, and an order in favor of Mrs. Campo was entered that the decree theretofore entered on November 24, 1942, should be vacated and set aside as to Mrs. Campo and she be granted leave to appear and defend, from which Koepke appeals. We reversed the decree. Koepke v. Schumacher (Campo, Appellee), 324 Ill.App. 315, 58 N.E.2d 198, Abst. The Supreme Court reversed this court (Koepke v. Campo, 391 Ill. 355, 63 N.E.2d 507, 508) and remanded the cause to this court with direction to dismiss the appeal, in substance a direction to proceed in conformity with the views expressed in the opinion of the Supreme Court.

The merits of Koepke's appeal were not considered by the Supreme Court. The question considered by the Appellate Court had been whether a supposed affidavit of nonresidence was sufficient to confer jurisdiction of Mrs. Campo. The Supreme Court held that neither that court nor this had jurisdiction to decide that question. The Supreme Court said:

‘Notwithstanding what purported to be a copy of the affidavit of nonresidence is contained in the transcript it is not a part of the record because it is not authenticated by the certificate of the clerk. * * *

‘We have no record before us upon which we can decide the question of jurisdiction over the person of Alice Campo; and it is equally clear the Appellate Court for the First District lacked that power.’

The record was returned to this court. Mrs. Campo made motions to redocket the cause, dismiss the appeal and assess damages of $474. The motion to redocket was allowed. Koepke made a motion for leave to suggest a diminution of the record. This was allowed and an additional record duly certified by the clerk filed January 25, 1946. The same day we denied in motions to dismiss the appeal and for assessment of damages.

The supplemental and additional record shows the filing on September 28, 1942, of the affidavit of nonresidence as to Mrs. Campo in the suit for foreclosure in the Circuit Court and sets forth a photostatic copy thereof. It is substantially the same affidavit contained in the record on which the appeal was originally considered in this court and which appears to have been lost or mislaid in the trial court and restored upon proof by order of the Circuit Court. Mrs. Campo objected to the motion for leave to file this additional record on the ground ‘that this court is without power or jurisdiction to grant said motion’. We hold the allowance of the motion was within the discretion of this court under Section 92(1)(c) of the Civil Practice Act, Ill. State Bar Stat., 1945, c. 110, § 216(1)(c), which provides:

‘(1) In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,-* * *

‘(c) Order or permit the record to be amended by correcting errors or by adding matters which should have been included.’

This section of the statute was construed in Francke v. Eadie, 373 Ill. 500, 26 N.E.2d 853, 855, where it was held the Appellate Court had the power under the statute to permit the filing of an additional record, showing that a notice of appeal, which had not been included with the record theretofore filed, might be thus supplied.

The Supreme Court said:

‘In the instant case, the Appellate Court granted the leave to file an additional transcript, which, when filed, supplied the deficiency in the original transcript. The transcript which was filed November 23 contained sufficient parts of the record to make it amendable, subject to the discretion of the court, and, in the granting of leave to file the additional transcript, the court was acting within the discretionary powers conferred by subparagraph (c) of section 92.

‘The provisions of section 92 of the Civil Practice Act and rule 36 of this court, when considered together and properly applied, make for a speedy and final determination of the case according to the substantive rights of the parties.’

The text writers agree with this construction. Nichols Illinois Civil Practice, §§ 6259, 6260; Smith Hurd Ann. Stat. Chap. 110, Historical and Practice Notes on Section 92.

It now appears the transcript of the record considered by this court was inaccurate in that the affidavit of nonresidence, shown on page 24A of the record as having been filed September 28, 1942, was in fact an affidavit of nonresidence filed June 1, 1944, pursuant to an order of that date ‘to restore to the files an affidavit of non residence filed herein on September 28, 1942, and which has been lost or misplaced, and the court having examined said petition * * * Finds, that said affidavit of non residence was duly filed herein, and that the same has been lost or misplaced and that diligent search has been made therefor * * * by the clerk of this court, and the same cannot be found, and it further appearing that the plaintiff has tendered a copy of said affidavit of non residence duly verified as a true and correct copy there: It is therefore ordered that leave is hereby given to the plaintiff to restore said lost document to the files and to file herein said copy of said affidavit of non residence this day presented to the court’.

It also appears that the certificate appended to the record dated June 1, 1944, was misleading in that the exception in it with reference to item 3 of the original praecipe (the specification of the affidavit of nonresidence filed September 28, 1942) failed to state that the affidavit on page 24A of the record was the affidavit of non-residence filed June 1, 1944, to restore the lost or misplaced affidavit of nonresidence filed September 28, 1942. These inaccuracies are now corrected by the supplemental record certified by the clerk.

To the objection that this court is without power to enter an order permitting the filing of this additional record Section 92, as above construed in Francke v. Eadie, 373 Ill. 500, 26 N.E.2d 853, is, we hold, a sufficient answer. It is worthy of note that the same power and authority existed under the former Practice Act of 1907, Smith-Hurd Stats. c. 110 Appendix § 81, Callaghan's Stat. Ann., vol. 6, Chap. 110, Section 81 of which is as follows:

‘* * * if it shall appear to the Supreme or Appellate Court that the record in any cause is incomplete or insufficient upon which to fairly consider and pass upon errors or cross errors assigned, such court shall order the clerk of the trial court to certify such additional parts of the record as it shall deem necessary, and such court shall make such order as to costs resulting therefrom as it shall deem just.’

It is also worthy of note that prior to the enactment of that statute the same practice prevailed with the exception that it was necessary to make application for relief to the trial court instead of the reviewing tribunal. Bergen v. Riggs, 40 Ill. 61, 89 Am.Dec. 335;Brooks v. Bruhn, 40 Ill. 64;Illinois Cent. R. Co. v. Garish, 40 Ill. 70;Reed v. Curry, 40 Ill. 73;Shipley v. Spencer, 40 Ill. 105.

The fact controlling our discretion in allowing the motion to suggest a diminution of the record is that the merits of the appeal were not passed on by the Supreme Court. This distinction is vital, as appears from a number of Supreme Court cases.

In re Estate of Maher, 210 Ill. 160, 164, 165, 71 N.E. 438, 440, the opinion of the Supreme Court refers to two lines of cases and states...