Mederacke v. Becker, Gen. No. 10599

• Court: United States Appellate Court of Illinois
• Writing for the Court: TRAPP; SMITH, P. J. and CRAVEN
• Citation: 205 N.E.2d 519,56 Ill.App.2d 128
• Parties: Helen MEDERACKE, Plaintiff-Appellee, v. William J. BECKER, Dorothy P. Becker, Lina Hauschild, Arthur Hauschild, Cletus German, Administrator with will annexed of the estate of Richard Mederacke, Deceased, and Elda Naggi, Defendants, William J. Becker and Dorothy P. Becker, Defendants-Appellants.
• Decision Date: 08 March 1965
• Docket Number: Gen. No. 10599

Page 519

205 N.E.2d 519 56 Ill.App.2d 128 Helen MEDERACKE, Plaintiff-Appellee,
v.
William J. BECKER, Dorothy P. Becker, Lina Hauschild, Arthur
Hauschild, Cletus German, Administrator with will
annexed of the estate of Richard
Mederacke, Deceased, and Elda
Naggi, Defendants,
William J. Becker and Dorothy P. Becker, Defendants-Appellants. Gen. No. 10599. Appellate Court of Illinois, Fourth District. March 8, 1965.
Rehearing Denied April 6, 1965.

[56 Ill.App.2d 129]

Page 520

D. A. McGrady, McGrady & Madden, Gillespie, William J. Becker, Clayton, Mo., for appellants.

John R. Sprague, Belleville, for appellee.

[56 Ill.App.2d 130] TRAPP, Justice.

The defendants, William J. Becker and Dorothy P. Becker, appeal from certain decrees of the trial court dated May 8, 1961, and May 2, 1963.

The decree of the Circuit Court entered on May 8, 1961, found that the plaintiff, Helen Mederacke, was the true and lawful owner of the described real and personal property and ordered the defendants, William J. Becker and Dorothy P. Becker, to convey said real estate to the plaintiff by good and sufficient instruments of conveyance. It further ordered that the described personal property in the possession of the defendants be delivered instanter to the plaintiff. The decree found, '* * * that there is no just reason for delaying enforcement or appeal. * * *' of the order with respect to either the real property or the personal property. The decree further orders that the defendants pay the costs of the proceedings to date, itemized to total $4116.14.

It appears that thereafter the real property and the possession of the personal property in issue were transferred to the plaintiff on or about June 8, 1961.

Notice of appeal from the decree of May 8, 1961, to the Supreme Court was filed on August 2, 1961, and a praecipe for record was filed on August 11, 1961, by defendants, William J. Becker and Dorothy P. Becker. The appeal was dismissed by the Supreme Court on November 22, 1961, for failure to file the record on appeal as required by the rules of the court. The plaintiff contends that this appeal, so far as it undertakes to be an appeal from the decree of the trial court determining the title and possession to real and personal property entered May 8, 1961, must be dismissed for the reason that such decree was a final and appealable order, that defendants' appeal from such decree was dismissed in the Supreme Court for failure to complete the appeal under the rules and [56 Ill.App.2d 131] that under the Civil Practice Act and the rules of the court there is no provision for a second appeal.

It is the contention of the defendants that the present appeal, 'is the first appeal taken in this case', and that to hold that the decree of May 8, 1961, is res judicata, would be to deny the defendant a right to appeal.

We believe it to be clear that the decree of May 8, 1961, was a final and appealable order. Under the practice existing prior to the adoption of Section 50(2) of the Civil Practice Act in 1955, this decree was final within the meaning of Section 77(1) of the Civil Practice Act, since it adjudicated and determined the ultimate rights of the parties as to the title and ownership of real and personal property and was a separable issue from the accounting ordered in the decree, which latter issue was a mere incident flowing from the rights established by such decree. Barnhart v. Barnhart, 415 Ill. 303, 114 N.E.2d 378 [1953].

The decree of May 8, 1961, being in effect a final appealable order, the trial court properly and clearly made the finding required by Section 50(2) of the Civil Practice Act that there was no just reason for delaying the enforcement or appeal of the decree so entered.

Defendants' appeal from such decree was perfected in the Supreme Court when the notice of appeal was filed on August 2, 1961. Chapter 110, Section 76(2), [Ill.Rev.Stat.1961.]

Page 521

Such perfected appeal having been dismissed by the Supreme Court by reason of the failure of the defendants to complete the appeal as required under the statutes and the rules of the court, may the latter now have the benefit of an appeal from the decree of May 8, 1961, when he perfects an appeal from a subsequent decree of the trial court entered on May 2, 1963, following an accounting?

[56 Ill.App.2d 132] We have sought to consider the Illinois cases relating to the rights of a party to further relief when his appeal has been dismissed in the reviewing court. In Palmer v. Gardiner, 77 Ill. 143 [1875], the defendants' appeal to the Supreme Court was dismissed for his failure to file the necessary record on appeal. Thereafter, the defendant sought to enjoin the collection of a judgment entered against him. His complaint for injunction being dismissed below, defendant again appealed to the Supreme Court. That court held that upon defendant's failure to file the necessary record as was his duty under the rules, '* * * appellant lost all right to further prosecute his appeal, and, under the long settled practice, the appeal could be dismissed * * *.'

Following the adoption of the Civil Practice Act, our Supreme and Appellate Courts have consistently held that where a notice of appeal has been filed, there was no provision in the statute for filing a second notice of appeal. Corrigan v. Von Schill College of Chiropody, 277 Ill.App. 350. We note that in Lanquist v. Grossmann, 282 Ill.App. 181 [1935], and in Cullinan v. Cullinan, 285 Ill.App. 272, 1 N.E.2d 921 [1936], it was contended that the appellant had the option to abandon or disregard the appeal perfected by filing the first notice of appeal and could proceed under a second notice of appeal. The Court held, however, that the second appeal should be dismissed for want of statutory sanction.

Again, in People ex rel. Bender v. Davis, 365 Ill. 389, 6 N.E.2d 643, the appellants perfected an appeal by notice of appeal to the Appellate Court but failed to comply with the rules in completing such appeal, and the appeal was dismissed. Thereafter, by a subsequent order, the Appellate Court permitted appellant to file its notice of appeal under the provisions of the statute for appeal within one year from the date [56 Ill.App.2d 133] of the judgment. The Supreme Court awarded a writ of mandamus expunging the order of the Appellate Court which allowed appellant to file the second notice of appeal under the provisions of the statute allowing the filing within...