McDonald v. McDonald

• Decision Date: 26 October 1953
• Docket Number: Gen. No. 9902
• Citation: 351 Ill.App. 432,115 N.E.2d 567
• Parties: McDONALD v. McDONALD et al.
• Court: United States Appellate Court of Illinois

Page 567

115 N.E.2d 567

351 Ill.App. 432

McDONALD v. McDONALD et al.

Gen. No. 9902.

Appellate Court of Illinois, Third District.

Oct. 26, 1953.

Rehearing Denied Dec. 2, 1953.

Arlo E. Bane, Bloomington, and LeRoy, for appellant.

Livingston, Murphy & Barger, Bloomington, Chalmer C. Taylor, Bloomington, for appellee Eugene H. McDonald.

CARROLL, Justice.

This case was transferred to this Court by the Supreme Court of Illinois for the reason that the issues thereby presented did not involve a freehold. McDonald v. McDonald, 414 Ill. 118, 110 N.E.2d 221.

The litigation out of which this appeal grows began when plaintiff, Lawrence W. McDonald, brought suit in the Circuit Court of McLean County against Eugene H. McDonald, his brother (defendant herein), and his three sisters, seeking to set aside five deeds by which the parties had voluntarily partitioned a farm of 320 acres, and to have the Court decree partition thereof. Defendant filed a Counterclaim against the plaintiff for an accounting of profits allegedly due him as a partner of the plaintiff in the operation of the said farm. The three sisters also filed Counterclaims. On hearing, the Chancellor found the voluntary partition deeds to be valid and entered a Decree accordingly, but retained therein jurisdiction over all questions raised by the several Counterclaims. That Decree was affirmed by the Supreme Court. McDonald v. McDonald, 408 Ill. 388, 97 N.E.2d 336.

On April 13, 1951, the cause was ordered redocketed. On March 10, 1952, defendant filed his petition therein, in which he prayed the following: (1) Entry of an Order directing plaintiff to forthwith vacate the dwelling house and other improvements occupied by him and located upon 32 acres of the real estate which had previously been decreed to be the property of the defendant; (2) A judgment in favor of defendant and against plaintiff for $1,958.06, being reimbursement for moneys advanced for taxes and payments on a mortgage debt; (3) Reference of the cause to a Commissioner or other officer of the Court for the purpose of determining and stating an account between the defendant and the plaintiff. Notice that said petition would be presented and heard on March 10, 1952, with a copy thereof attached, was served upon the plaintiff on February 25, 1952.

At the time specified in the notice, Attorney Arlo E. Bane appeared for the plaintiff, and although the record reflects considerable uncertainty as to the exact character of his appearance, it was apparently limited to the purpose of moving the Court for a continuance to enable the plaintiff to engage counsel. This motion for a continuance was denied.

The Court thereupon heard evidence and entered an order directing the plaintiff to surrender possession of the real estate described in the petition and entered judgment for $2,144.46 in favor of the defendant and against the plaintiff. From said order this appeal has been taken.

Defendant has filed a motion to dismiss the appeal and this has been taken with the case. In this motion, defendant urges as the basis for its allowance, the following reasons: (1) That the record on appeal was not transmitted to and filed in the reviewing court within the time provided in Supreme Court Rule 36, Ill.Rev.Stat.1953, c. 110, § 529.36; (2) That the abstract of record does not comply with Supreme Court Rule 38; (3) That the brief filed herein does not comply with Supreme Court Rule 39; and (4) That the report of proceedings at the trial is improperly included in the record.

Supreme Court Rule 36, Paragraph (2), Sub-Paragraph (a) provides that the record on appeal shall be transmitted to the reviewing court not more than sixty days after notice of appeal has been filed. Said Sub-Paragraph (a) further provides that 'In the event the reviewing court or justice thereof or a judge of the trial court shall make an order or orders extending the time allowed for filing the report of the proceedings at the trial as in this rule provided, the time within which the record on appeal shall be transmitted to the reviewing court shall, without the necessity of any other order for said purpose by the trial court or reviewing court, or any judge or justice of either thereof, be correspondingly extended.' Sub-Paragraph (b), Paragraph (2), Supreme Court Rule 36, provides as follows: 'Further time within which to file the record on appeal may be granted by the reviewing court, or by any justice thereof in vacation upon motion and affidavit showing good cause and due diligence.'

In order to determine whether plaintiff has complied with the aforesaid Supreme Court Rule, reference must be had to the record, which discloses the following: notice of appeal, bond, and praecipe for record were filed April 9, 1952. On May 26, 1952, the time to file report of proceedings at the...