Lake Shore Oil Co. v. Sovereign Oil Co.

• Decision Date: 27 July 1981
• Docket Number: No. 81-1327,81-1327
• Citation: 424 N.E.2d 856,54 Ill.Dec. 106,98 Ill.App.3d 553
• Parties: , 54 Ill.Dec. 106 LAKE SHORE OIL COMPANY, a corporation, Plaintiff-Appellee, v. SOVEREIGN OIL COMPANY, a corporation, and Future Chemical and Oil Corporation, a corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 856

424 N.E.2d 856

98 Ill.App.3d 553, 54 Ill.Dec. 106

LAKE SHORE OIL COMPANY, a corporation, Plaintiff-Appellee, v. SOVEREIGN OIL COMPANY, a corporation, and Future Chemical and Oil Corporation, a corporation, Defendants-Appellants.

No. 81-1327.

Appellate Court of Illinois, First District, First Division.

July 27, 1981.

Propp & Schultz and Norman S. Lynn, Chicago, for defendants-appellants.

Berkson, Gorov & Levin, Ltd., Chicago (Arthur M. Gorov, Chicago, of counsel), for plaintiff-appellee.

GOLDBERG, Justice:

On June 12, 1980, Lake Shore Oil Company, a corporation, (plaintiff), filed its complaint for injunction and other relief against Sovereign Oil Company, a corporation, and Future Chemical and Oil Corporation, a corporation, (defendants). On June 17, 1980, the trial judge entered an ex parte temporary restraining order enjoining defendants from selling or disposing of property of plaintiff. On June 25, 1980, defendants filed a motion to dissolve the temporary restraining order. On that day the trial judge denied the motion to dissolve. In addition, by agreement of the parties, the court ordered that the temporary restraining order remain in effect pending hearing on plaintiff's motion for preliminary injunction.

The parties then proceeded with discovery. On September 10, 1980, defendants filed an answer and counterclaim. On April 29, 1981, defendants filed a petition for rehearing of their motion to vacate the temporary restraining order. On April 30, 1981, the defendants' petition for rehearing was denied. On May 19, 1981, defendants filed a notice of interlocutory appeal. Supreme Court Rule 307, Ill.Rev.Stat.1979, ch. 110A, par. 307.

The parties have filed their briefs in this court. Plaintiff's brief contends this court lacks jurisdiction because of tardy filing of the notice of appeal. The temporary restraining order here entered was an interlocutory order; thus subject to interlocutory appeal.

The pertinent rule provides (Supreme Court Rule 307(a)):

"The appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated 'Notice of Interlocutory Appeal' * * *."

In the instant case, the temporary restraining order was entered ex parte. Therefore, the rights of the parties are governed by Rule 307(b) which provides:

"If an interlocutory order is entered on ex parte application, the party intending to take an appeal therefrom shall first present, on notice, a motion to the trial court to vacate the order. An appeal may be taken if the motion is denied, or if the court does not act thereon within 7 days after its presentation. The 30 days allowed for taking an appeal and filing the record begins to run from the day the motion is denied or from the last day for action thereon."

Defendants made a motion to dissolve the temporary restraining order on June 25, 1980. This motion was denied on June 25, 1980. Therefore, under the clear language of the rule, the defendants' time for taking the appeal began to run from June 25, 1980. It follows that defendants' subsequent filing of the notice of interlocutory appeal on May 19, 1981, was after the time had elapsed. This court therefore has no jurisdiction.

We find this situation discussed in Trophytime, Inc. v. Graham (1979), 73 Ill.App.3d 335, 29 Ill.Dec. 391, 391 N.E.2d 1074. This court expressly pointed out we were aware of no authority "which would allow a motion (filed subsequent to the entry of an interlocutory order) to postpone the time in which to file a timely notice of appeal." (73 Ill.App.3d 335, 336-37, 29 Ill.Dec. 391, 391 N.E.2d 1074.) We find the same result reached in In re Adoption of Anderson (1980), 88 Ill.App.3d 42, 43 Ill.Dec. 374, 410 N.E.2d 374). Under similar circumstances, the court there followed the decision in Trophytime.

However, in its reply brief in this court, defendants urge their notice of appeal was timely filed because their ...